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Chamberlain v Attorney-General

Chamberlain v Attorney-General

Case [2017] NZHC 1821 7 August 2017

Jurisdiction

Statutory Interpretation

Unconscionable Conduct

Administrative Law

Reasonableness

Legitimate Expectation

Administrative Law

Disability Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2269 [2017] NZHC 1821

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of a decision pursuant to the New Zealand
Public Health and Disability Act 2000

BETWEEN

SHANE CHAMBERLAIN BY HIS LITIGATION GUARDIAN JANE CARRIGAN

First Plaintiff

DIANE MOODY Second Plaintiff

AND

HER MAJESTYʼS ATTORNEY GENERAL IN RESPECT OF THE MINISTRY OF HEALTH Defendant

Hearing: 13–15 March 2017

Appearances:

P J Dale and G Ghahraman for Plaintiffs
P T Rishworth QC, V McCall and M J McKillop for Defendant

Judgment:

7 August 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 7 August 2017 at 1.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
P J Dale, Barrister, Auckland
Neilsons Lawyers Ltd, Auckland
Crown Law Office, Wellington

CHAMBERLAIN v MINISTRY OF HEALTH [2017] NZHC 1821 [7 August 2017]

Summary

[1] Mr Shane Chamberlain, at age 50, is unable to care for himself. His mother, Mrs Diane Moody, cares for him all day, every day, or 168 hours a week. Shane is her life. Until 2013 the New Zealand government would not pay family members to care for other family members. After the Atkinson litigation the government has funded “personal care” and “household management” services, under the Funded Family Care (FFC) Policy, for up to 40 hours a week. Mrs Moody asked for funding from the Ministry of Health under the Policy, expecting 40 hours funding a week. Various assessments of Shane’s needs have estimated the specific discrete tasks involved in his care required as amounting to between 11 and 21 hours a week. The Ministry says the Policy does not include funding for “supervision”. Shane and Mrs Moody challenge the funding decisions as unlawful for inconsistency with the Policy, with the New Zealand Public Health and Disability Act 2002 (the Act), with a substantive legitimate expectation or as unlawful for unreasonableness. They also say measuring Shane’s need in terms of time is inconsistent with his dignity.

[2] The Policy is a legal instrument, under pt 4A of the Act. Although I can understand why Mrs Moody was surprised, I conclude the Ministry’s decisions are, legally, within the terms of the FFC Policy. The Policy is designed to fund specific care services, up to 40 hours a week, rather than full residential care. Supervision is not part of “personal care” or “household management” services in the sense those terms are used in the Policy. That interpretation might be different if there was evidence someone in Shane’s position, whose care is provided by a contracted service provider rather than a family member, would receive materially higher funding than Shane. But there is not such evidence, here. Similarly, the Policy is not inconsistent with the Act. The funding decisions are not unreasonable. No enforceable substantive legitimate expectation was breached. I do not consider the Policy is unlawful because it uses time to measure needs. So the challenge fails.

Funding for the care…

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 Chamberlain v Attorney-General

Details

AGLC: Chamberlain v Attorney-General [2017] NZHC 1821
Case: [2017] NZHC 1821
Decision Date: 7 August 2017

CaseChat Overview and Summary

In Chamberlain v Attorney-General, Shane Chamberlain and his mother, Diane Moody, challenged the Ministry of Health's decision to limit the funding for Shane's care to 21 hours per week, arguing it was inconsistent with the Funded Family Care Policy, the New Zealand Public Health and Disability Act 2000 (the Act), and a substantive legitimate expectation. They also argued measuring Shane's needs in terms of time was inconsistent with his dignity. The court examined whether the funding decisions were inconsistent with the policy, unreasonable, inconsistent with the Act, or breached a substantive legitimate expectation. The court found the policy's terms "personal care" and "household management" referred to specific tasks, not general supervision, and therefore, the funding decisions were consistent with the policy. The court also found the funding decisions were not unreasonable, inconsistent with the Act, or breached a substantive legitimate expectation. Consequently, the court dismissed the application for judicial review.

Orders