DIRECTOR-GENERAL OF HEALTH v HUMPHREYS [2022] NZCA 92

DIRECTOR-GENERAL OF HEALTH v HUMPHREYS [2022] NZCA 92 [29 March 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA742/2021[2022] NZCA 92BETWEEN DIRECTOR-GENERAL OF HEALTHApplicantAND PETER HUMPHREYSRespondentCourt: Cooper and Courtney JJCounsel: S V McKechnie and T J Bremner for ApplicantP Cranney for RespondentJudgment:(On the papers)29 March 2022 at 2.15 pmJUDGMENT OF THE COURTThe application for leave to appeal is granted in respect of the questions set outin [6].____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The Director-General of Health for the Ministry of Health (Ministry) seeksleave to appeal the decision of the Employment Court in Humphreys v Humphreys.1[2] The Employment Court judgment concerned the funding mechanisms whichallow payment of carers who live with and care for disabled family members. At the1 Humphreys v Humphreys [2021] NZEmpC 217.relevant times there have been two funding mechanisms, namely Funded Family Care(FFC) and Individualised Funding (IF). The latter applied after FFC wasdisestablished in mid-2020.[3] Those funding mechanisms were the subject of consideration in an earlierdecision of the Employment Court, Fleming v Attorney-General.2 In that case theEmployment Court declared that the Ministry had engaged Ms Fleming as the carer ofher severely mentally and physically disabled son. This Court has granted leave toappeal against that decision on questions of law under s 214 of the EmploymentRelations Act 2000.3[4] The present application raises similar questions of law in relation to theapplication of the same funding mechanisms. Mr Humphreys is the father of an adultdaughter diagnosed with Angelman syndrome when she was three years old. She isassessed as having very high disability needs which will continue throughout her life.Mr Humphreys challenged the decision of the Ministry to treat his daughter as hisemployer for the purposes of the funding mechanisms.[5] The Employment Court held that:(a) Pt 4A and (implicitly) s 88 of the New Zealand Public Health andDisability Act 2000 did not constrain the Court's ability to assess theemployment relationship during the FFC period.4(b) Mr Humphreys had been engaged by the Ministry as a homeworker andwas therefore a Ministry employee.52 Fleming v Attorney-General [2021] NZEmpC 77.3 Attorney-General v Fleming [2021] NZCA 510.4 Humphreys v Humphreys, above n 1, at [50]–[52]. The Court did not refer to s 88, which it haddiscussed in Fleming v Attorney-General, above n 2, at [52] but followed the same approach as ittook that case.5 At [100].(c) As an employer, the Ministry's obligations include remuneratingMr Humphreys appropriately for his work, as assessed by reference tothis Court's decision in Idea Services Ltd v Dixon.6[6] Leave to appeal is sought in respect of three questions of law said to arise fromthe Employment Court's judgment. They are:(a) Did the Employment Court err in its assessment of the effect of pt 4Aand s 88 of the New Zealand Public Health and Disability Act 2000(PHDA) on the Court's ability to assess the employment relationshipunder Funded Family Care (FFC)?(b) Was Mr Humphreys a "homeworker" as defined by s 5 of theEmployment Relations Act 2000 and therefore an employee of theMinistry of Health when he cared for his daughter during:(i) the FFC Period (April 2014 to August 2020)?(ii) the Individualised Funding (IF) Period (August 2020 onwards)?(c) Was the Employment Court wrong in finding that the Court of Appeal'sapproach in Idea Services Ltd v Dickson [2011] NZCA 14, [2011] 2NZLR 522 applies to an assessment of hours worked by Mr Humphreysas a homeworker for:(i) the FFC Period?(ii) the IF period?[7] The second and third of the proposed questions are effectively the same asquestions for which this Court has already granted leave in Attorney-General vFleming. The first question arises in this case only because there was funding underthe FFC scheme. The Director-General says that this meant the Employment Court6 At [118], referring to Idea Services Ltd v Dickson [2011] NZCA 14, [2011] 2 NZLR 522.should have considered the implications of s 88(1)(a) of the New Zealand PublicHealth and Disability Act 2000 and what was said about that provision in this Court'sjudgment in Chamberlain v Minister of Health.7 Mr Cranney for Mr Humphreys, inopposing leave, submits that the Director-General's stance overlooks the fact that thepayments under the scheme were not made to Mr Humphreys but to his daughter, butwe are satisfied that is an issue that ought to be considered at a substantive hearing.[8] We are satisfied that the proposed questions raise genuine questions of law, andthat they are of sufficient public importance to be submitted to this Court for decision.8The existing grant of leave in Fleming supports that conclusion.[9] We accordingly grant leave to appeal in respect of the questions of law set outin [6] above.[10] We direct the registrar to set the appeal down for hearing at the same time asthe appeal in Attorney-General v Fleming.Solicitors:Simpson Grierson, Wellington for ApplicantOakley Moran, Wellington for Respondent7 Chamberlain v Minister of Health [2018] NZCA 8, [2018] 2 NZLR 771 at [36].8 Employment Relations Act 2000, s 214.