CHAMBERLAIN v MINISTRY OF HEALTH [2017] NZHC 1821

CHAMBERLAIN v MINISTRY OF HEALTH [2017] NZHC 1821 [7 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-2269[2017] NZHC 1821UNDER the Judicature Amendment Act 1972IN THE MATTER of a decision pursuant to the New ZealandPublic Health and Disability Act 2000BETWEEN SHANE CHAMBERLAIN BY HISLITIGATION GUARDIAN JANECARRIGANFirst PlaintiffDIANE MOODYSecond PlaintiffAND HER MAJESTYʼS ATTORNEYGENERAL IN RESPECT OF THEMINISTRY OF HEALTHDefendantHearing: 13–15 March 2017Appearances: P J Dale and G Ghahraman for PlaintiffsP T Rishworth QC, V McCall and M J McKillop for DefendantJudgment: 7 August 2017JUDGMENT OF PALMER JThis judgment is delivered by me on 7 August 2017 at 1.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors/Counsel:P J Dale, Barrister, AucklandNeilsons Lawyers Ltd, AucklandCrown Law Office, WellingtonSummary[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 alsosay 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 contractedservice 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 of Mr Shane ChamberlainMr Shane Chamberlain[3] Mr Shane Chamberlain is 50 years old. He is the oldest child of Mrs Diane Moody, who is 75 years old. As a result of birth-related complications, Shane was left profoundly intellectually disabled and paralysed down the right side of his body. In addition he was born with Williams Syndrome, diagnosed when he was 30.[4] Mrs Moody's evidence, which is not disputed, is that Shane is incapable of normal day-to-day self-care. He has no traffic sense, could not cross the road or catch a bus on his own, does not have the capacity to work and cannot read or write. Mrs Moody says:1Shane lacks mental capacity in so much as he has no genuine or meaningful understanding of anything other than his most basic likes/dislikes. Shane is fully reliant upon myself, or third party, to provide him with full care and support which includes 24/7 supervision.[5] Shane has always lived with and been cared for by his mother at her home.Mrs Moody and her husband, Shane's father, divorced in 2003. Shane's father diedin 2007. Shane was in day care from the ages of 21 to 25 from which his mother withdrew him as a result of a violent assault which caused him trauma. He has been in full time home care since 1992. Mrs Moody says he needs care for 168 hours a week, which is 24 hours a day, seven days a week.[6] As Mrs Moody says, "Shane is my life".2Decisions about funding for Shane's care[7] The Ministry of Health contracts with providers of needs assessment andservice coordination (NASC) services. They determine a person's eligibility toreceive disability support services by conducting individualised needs assessments. On that basis they then coordinate services to ensure support needs are met.1 Affidavit of Mrs Diane Moody of 25 September 2015 at [8].2 Affidavit of Mrs Diane Moody of 25 September 2015 at [52].[8] I outline the law and policy relevant to funding of care for people with disabilities later. First, I outline the decisions about funding of Shane's care. Theyare the decisions under challenge here. Mrs Moody gives a lengthy account of her various frustrations with the bureaucratic processes with which she has engaged, frustrations the Crown acknowledges are readily understandable. But the ins and outs of those are not relevant to the legal issues I have to decide.[9] The Taikura Trust is a charitable trust contracted by the Ministry of Health to work with people with disabilities and their carers as a NASC. In May 2014 the Trust undertook a needs assessment for Mrs Moody's application for family fundingfor her care and support of Shane. Mrs Moody signed off on the needs assessment but she was unhappy with, and confused by, many bureaucratic aspects of this and subsequent processes.[10] The evidence of Ms Jan White, NASC National Reviewer, is that she and Taikura were satisfied Shane would be assessed as having "high" disability-relatedneeds and "met the eligibility criterion relating to a 'high' or 'very high' level ofneed".3 At the time, Ms White supported the initial NASC allocation of total support as 10 hours, 30 minutes per week. Mrs Moody was advised on 27 June 2014 that Shane was entitled to 11 hours FFC per week.[11] Mrs Moody was shocked, since she considered Shane required 168 hours of care per week. Amongst the ensuing correspondence was a letter to her from the Taikura Trust dated 30 July 2014, explaining:The criteria for the allocation of FFC support is currently limited to the identified personal care and household management tasks required to supporta person's disability. While NASC recognises the 24/7 support that you haveprovided and continue to provide for Shane, FFC cannot fund support which is not directly related to the provision of personal care and household management tasks.[12] Mrs Moody disputed the assessment. Ms White directed Access Ability Otago, another NASC organisation, to conduct a peer review. On 7 November 2014 Mrs Moody was notified Shane's eligibility had been revised to 19 hours. FromSeptember 2015 (backdated to May 2014) Mrs Moody was paid to provide 15 hours3 Affidavit of Janice White of 2 March 2016 at [6].per week. The other four hours were provided by an external provider, Geneva Health Care. Mrs Moody is treated by the Ministry as being employed by Shane. She considers does not make sense given his lack of mental capacity, but her counsel, Mr Dale, says that is not something I need to address directly.[13] Ms White's evidence is "there are other people who receive up to 40 hoursfunded care a week" who "have a service co-ordination that reflects a much higher degree of hands-on support or direct close supervision than Shane's needs suggest".4She says that might be because a person needs two carers for all transfers, showering or dressing or needs a person close to them at all times because of risks if they are left alone or need to be turned regularly or require exercise or therapy programmes.[14] Mrs Moody, and Shane's litigation guardian Ms Jane Carrigan, havecontinued to dispute the level of assistance provided. This proceeding was commenced in September 2015.[15] In December 2015 the Taikura Trust undertook a further needs assessment atMrs Moody's request. She was concerned about her own health and wanted to know what would happen to Shane in an emergency. She made an urgent request for Crisis Care, a Supported Living package for Shane, and for a reassessment of the 19 hours of FFC allocation.[16] The evidence of Ms Toni Atkinson, Group Manager in the Ministry of Health, is that the further needs assessment was finalised with Mrs Moody's agreement on 9 February 2016.5 Mrs Moody's evidence is that she signed it on 11 February 2016 but she was expecting further changes in response to her further objections.6 Therewas also an annual review of Shane's support plan on 4 May 2016. The final formal support plan of 31 May 2016 contained 30 days of carer support and 12 days of respite per year and 17 hours of FFC and 4 hours of Geneva personal care per week.[17] Mrs Moody considers Shane's needs are such that she should be paid for 40hours of care a week.4 Affidavit of Janice White of 2 March 2016 at [51].5 Second Affidavit of Toni Atkinson of 16 December 2016 at [4].6 Affidavit of Diane Moody of 25 January 2017 at [29]–[30].The law and policy of funding care of family membersThe Act and Convention[18] The Act is the legislative authority for funding the relevant disability services here. Its purposes are set out in s 3:(1) The purpose of this Act is to provide for the public funding andprovision of disability support services, and to establish new publicly-owned health and disability organisations, in order to pursue the following objectives:(a) to achieve for New Zealanders—(i) the improvement, promotion, and protection of their health:(ii) the promotion of the inclusion and participation in society and independence of people with disabilities:(iii) the best care or support for those in need of services:(2) The objectives stated in subsection (1) are to be pursued to the extent that they are reasonably achievable within the funding provided.[19] Under s 8(2) of the Act, the Minister for Disability Issues is required todetermine a strategy for disability support services, "to provide the framework for the Government's overall direction of the disability sector in improving disabilitysupport services". The second New Zealand Disability Strategy of 2016 expressly adopts, as guiding principles, the Principles of the United Nations Convention on the Rights of Persons with Disabilities (the Convention), which New Zealand ratified in 2008. Relevant articles are:Article 1PurposeThe purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.Article 3General PrinicplesThe principles of the present Convention shall be:(a) Respect for inherent dignity, individual autonomy including thefreedom to make one's own choices, and independence of persons;(b) Non-discrimination;(c) Full and effective participation and inclusion in society;[20] Section 10 of the Act empowers the Minister to negotiate and enter a Crown funding agreement with any person, under which the Crown provides money in return for the person providing, or arranging provision of, services specified in the agreement. Section 88 deems acceptance by a person of payment from the Crown or DHB, after notice of the terms and conditions are given, to constitute acceptance of the terms and conditions. It empowers the Crown or DHB to enforce compliance with the terms and conditions as if the person had signed a deed. This is the authority under which the FFC payments are made. But the authority for the FFC Policy itself derives from pt 4A of the Act which was passed in 2013.Part 4A[21] Before 2013, the Ministry of Health had a long-standing policy or practice of preventing the spouses or resident family members of people with disabilities from being paid to provide them with disability support services. Susan Atkinson and others challenged the policy as unlawfully discriminating on the basis of family status. The challenge was upheld by the Human Rights Review Tribunal and the High Court in 2010 and by the Court of Appeal in Ministry of Health v Atkinson in May 2012.7[22] In response, in April 2013, Cabinet agreed to allow funding for the parents or resident family members to care for adults with disabilities under the Home and Community Support Services policy. At the same time, Cabinet agreed to sponsor legislation limiting claims arising under the former policy that the courts had found unlawful. The Minister of Health's paper to the Cabinet Legislation Committeestated the Ministry of Justice was likely to advise the Attorney-General that the Bill appeared to be inconsistent with the New Zealand Bill of Rights Act 1990 (Bill of7 Atkinson v Ministry of Health (2010) 8 HRNZ 902 (HRRT); Atkinson v Ministry of Health(2010) 9 HRNZ 47 (HC); Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 457.Rights).8 The Attorney-General reported to the House his view that the Bill could potentially be in breach of the non-discrimination right guaranteed by s 19(1) of the Bill of Rights.9[23] Nevertheless the New Zealand Public Health and Disability Amendment Bill (No 2) 2013 was rushed through the House of Representatives as budget night legislation in 2013, without public submissions or select committee scrutiny. This resulted in pt 4A of the Act, entitled "Family care policies", which came into forceon 1 October 2013. Section 70A sets out the purpose of pt 4A:70A Purpose of this Part(1) The purpose of this Part is to keep the funding of support services provided by persons to their family members within sustainable limits in order to give effect to the restraint imposed by section 3(2) and to affirm the principle that, in the context of the funding of support services, families generally have primary responsibility for the well-being of their family members.(2) To achieve that purpose, this Act, among other things,—(a) prohibits the Crown or a DHB from paying a person for providing support services to a family member unless the payment is permitted by an applicable family care policy or is expressly authorised by or under an enactment:(b) declares that the Crown and DHBs have always been authorised, and continue to be authorised, to adopt or have family care policies that permit persons to be paid, in certain cases, for providing support services to family members:(c) stops (subject to certain savings) any complaint to the Human Rights Commission and any proceeding in any court if the complaint or proceeding is, in whole or in part, based on anassertion that a person's right to freedom from discrimination on any of the grounds of marital status, disability, age, or family status (affirmed by section 19 of the New Zealand Bill of Rights Act 1990) has been breached by—(i) a provision of this Part; or(ii) a family care policy; or(iii) anything done or omitted in compliance, or intended compliance, with this Part or a family care policy.8 Minister of Health paper to Cabinet Legislation Committee, undated, "New Zealand Public Health and Disability Amendment Bill 2013: Approval for Introduction".9 Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the New Zealand Public Health and Disability Amendment Bill (No 2) 2013.[24] Accordingly, and relevantly:(a) Section 70C prohibits the Crown or a DHB paying a person for support services provided to a family member unless payment is"permitted by an applicable family care policy" or expresslyauthorised by or under an enactment.(b) Section 70D(3) provides a family care policy adopted after the commencement of pt 4A may state a number of aspects of payments for support services provided to a family member, including the cases in which payments may be made, the conditions that must be satisfied, the rates and the limits on funding.[25] A "family care policy" is said by s 70D(5) not to be a disallowable instrument for the purposes of the Legislation Act 2012 and is defined by s 70B as follows:family care policy, in relation to the Crown or a DHB,—(a) means any statement in writing made by, or on behalf of, the Crown or by, or on behalf of, the DHB that permits, or has the effect of permitting, persons to be paid, in certain cases, for providing support services to their family members; and(b) includes any practice, whether or not reduced to writing, that has the same effect as a statement of the kind described in paragraph (a), being a practice that was followed by the Crown or by a DHB before the commencement of this Part.[26] The inclusion in the definition of family care policy in (b), of certain practices "whether or not reduced to writing", is inherently unsatisfactory in terms of the rule of law. The effect of pt 4A is to confer legal status on family care policies which means they must be interpreted as such. It is difficult to interpret a practice that has not been reduced to writing as a legal instrument and it should not be regarded as, or defined to be, one. That is not helped by the power accorded a public servant in s 70F to define the terms of such an unwritten practice retrospectively. Wisely the Crown, in this case, does not rely on any unwritten practice.[27] Section 70B also defines "support services" to mean "disability supportservices (as defined in section 6(1)) or health services (as so defined), or both, beingservices of a kind that are generally funded, directly or indirectly, through Vote Health". In turn, s 6(1):(a) defines "disability support services" to include "goods, services and facilities" provided to people with disabilities for their care or support or to promote their inclusion and participation in society, andindependence" or related to or incidental to that; and(b) defines "health services" to mean "personal health services and public health services" which are further defined to mean goods, services andfacilities "provided to an individual for the purpose of improving orprotecting the health of that individual" and "provided for the purpose of improving, promoting, or protecting public health or preventing population-wide disease, disability, or injury".[28] With some exceptions, s 70E prohibits anyone complaining to the Human Rights Commission or the courts, and those institutions from hearing or determining proceedings arising out of complaints, that a family care policy breaches freedom from discrimination under the Human Rights Act 1993 or the Bill of Rights.Home and Community Support Services Policy[29] I now set out the relevant policies in some detail. They are at the centre of this case since the funding decisions regarding Shane are said to be inconsistent with them or they are said to be inconsistent with the Act. They are also complex and difficult to follow.[30] There was some suggestion in the evidence of one of the Ministry of Health officials that prescriptive, detailed policies or rules and legislation do not work well.10 That may be so. But pt 4A confers on these policies the status of legal instruments and their text and purpose must be interpreted accordingly.[31] Amongst the services funded by the Ministry are Home and Community Support Services (HCSS), the successor to the Home-Based Support Services10 Affidavit of Katherine Brightwell dated 22 February 2016 at [98].(HBSS) challenged in the Atkinson litigation. HCSS is wider than HBSS in that, in its linkage to the FFC, it allows adults with disabilities to employ their parents or resident family members to provide support services. The services the HCSS seeks to fund are defined in the HCSS service specification.11 The Ministry incorporates the HCSS service specification into its Crown funding agreements with service providers under s 10 of the Act.[32] The HCSS Service Specification is set out in two "tiers". Relevantly, the Tier One Service Specification specifies the "DSS Principles" which are to be incorporated in the provision of services by providers under the agreement. These principles are said to be reflective of the Ministry's commitment to the Convention and include recognition of the rights of individuals to respect for their human worth and dignity and to live in and be part of their communities.[33] The introduction to the Tier Two Service Specification of HCSS states that it"provides the overarching Service Specification for all Home and Community Support Services funded by Disability Support Services (DSS)". The Tier Two Service Specification now applies equally to services to persons with disabilities provided by contracted service providers and, if eligible, by family members. Clause 6.6 states:6.6 Type of Services DeliveredThe Provider may deliver a combination of the following services.6.6.1 Household ManagementServices which assist a Person with a disability to maintain, organise and control their household/home environment, enabling them to continue living within their own environment.6.6.2 Personal CareAssistance with activities of daily living that enables a Person with a disability to maintain their functional ability at an optimal level.6.6.3 Sleepover Care or Night Support11 Ministry of Health, Disability Support Services, Tier Two Service Specification, Home and Community Support Services (September 2015 v1.0).A Service where the Support Worker or Other Staff Member is required to sleep at the home of the Person in order to provide intermittent care throughout the night.[34] Clause 12 provides the "Purchase Unit Codes" associated with this Service:(a) Household management, measured by hour and defined as:House Management services that enable a person to continue living with their own environment. This service is specifically for clients who meet the Ministry definition of disability. The number of hours are determined by the relevant NASC Agency for each client receiving Home support services. The service is for people until the age of 65.(b) Personal care, also measured by hour and defined as:Personal Care, Sleepover service(s) that enable a person to continue living with their own environment. This service is specifically for clients who meet the Ministry definition of disability.[35] The current version of the HCSS Service Specification does not define personal care or household management services more specifically. The 2002 and 2008 versions of the HCSS Service Specification preceded the pt 4A regime of the Act. But they provided examples of tasks involved in personal care and household management:(a) The 2002 specification of "personal caregiver tasks" was "[a]ssistancewith personal hygiene and the range of tasks required supporting dailyliving". A non-exclusive list of examples included assistance with eating, dressing and undressing, personal grooming, bathing, transfer from bed to chair and back, monitoring of skin and scalp, toileting, mobility.12(b) The 2008 specification of "Personal Support" was different when used for ACC and Disability Services purposes. The Disability Servicesdefinition was "Assistance with activities of daily living that enables a12 Ministry of Health, Service Specification: Home Based Support Services (July 2002) (HBSS 2002) at 7.Person with a disability to maintain their functional ability at anoptimal level".13(c) The 2002 specification of "household management tasks" was "[a]ssistance with tasks normally performed in and around the home.A non-exclusive list of examples included washing, drying, ironing, storage of laundry, cleaning, meal preparation, shopping for food. Excluded were "tasks normally associated with spring cleaning, irregular events or those normally undertaken by trade's people".14(d) The 2008 specification of "household support" was "[s]ervices which assist a Person with a disability to maintain, organise and control theirhousehold/home environment". A non-exclusive list of examples included meal preparation, laundry, bed making, cleaning and rubbish disposal.[36] The Support Package Allocation (SPA) is another policy document. It is a guide and a tool for benchmarking needs assessments. The Crown does not say it is part of a family care policy under s 70B. It is principally relevant in its descriptionof, and intended outcomes for, "high" or "very high" disability needs. The SPA also includes tables to calculate expenditure. The Crown has shown how the paymentsfor Shane's care, of $487.58 per week (based on 21 hours at the FFC payment rate), accords with them.Community Resident Support Services Policy[37] The Ministry also funds Community Residential Support Services (CRSS) to provide 24-hour care in a multi-person home-like environment. CRSS funding is allocated on the basis of the hours and minutes of care a person requires in a household environment with multiple clients – not in the person's own home. TheCRSS service specification includes, at cl 6.3.1, "supervision, assistance and support" as a component, whereas the HCSS does not.13 Ministry of Health, Home and Community Support Service Specification (Disability Services and ACC) (July 2007 v1.1) at 9.14 HBSS 2002 at 8.Funded Family Care Policy[38] Neither the HCSS nor the CRSS are family care policies for the purpose of pt 4A of the Act. Rather, the FFC policy is a "family care policy" adopted under s 70D. The Funded Family Care Notice 2013 was issued under s 88 of the Act and states, in cl 4, that the Notice is part of a policy and must be read with that policy.[39] Relevant clauses of the Notice are:(a) Clause 10 provides:Funded family care is described in the Funded Family Care Operational Policy. Essentially it is:(a) for personal care and household management services;(b) provided by a family carer to a disabled person who meets the eligibility criteria;(c) provided to the disabled person up to a maximum of 40 hours a week; and(d) paid at the rate of the minimum wage for adults.(b) Clause 17 states "[t]he Ministry expects that the funded family care will enable the disabled person to be cared for in their home and takepart in family and community life".(c) Clauses 27 and 28 require the person with a disability to have an individual service arrangement, specific to them in their home.(d) Clause 72 defines "funded family care" as:the policy made by the Government under Part 4A of the New Zealand Public Health and Disability Act 2000; andincludes the Ministry's Funded Family Care Operational Policy, this Notice, guidelines and related resources referring to funded family care, which is published on www.health.govt.nz.Particularly opaquely, the definition includes footnote 55 after"funded family care" which states:The home and community support services in the individual service arrangement, eg personal care – assistance with showering and dressing; household support – helping to prepare meals or home cleaning; and help for the disabled person through national networkssuch as family/whānau/aiga, friends, marae, neighbours and others,which ensures the disabled person has the appropriate quality of family care, and can access and attend services such as medical, dental and personal grooming services when required.[40] The FFC Operational Policy itself is a 27 page document.15 There have been different versions of the FFC Operational Policy document – the first in 2013 and the"second edition" in 2016. The Crown concedes the challenge would equally affectall of them and all the funding decisions in relation to Shane.[41] Relevantly, cl 2.2 of the FFC Policy provides a NASC will assess whether a disabled person is eligible for FFC and, if so, will conduct a needs assessment. Clause 2.4 provides that some or all disability related needs made be assessed as best supported through an allocation of HCSS. It states:The HCSS service may include personal care such as assistance with showering and consuming of food or assistance with night support in some cases. It can also include household management such as cleaning and cooking as well as some supports for the person to access community activities in certain circumstances.[42] Clause 5.2 states that, where a disabled person eligible for FFC has been allocated more than 40 hours of personal care and/or household management support hours per week, they may apply for consideration of having more than 40 hours delivered by a family carer under FFC. Clause 7.4 provides that an Individual Service Plan (ISP), created by the disabled person and their family carer with the assistance of the host facilitator, documents all the personal care and householdmanagement tasks associated with the disabled person's disability-related needs.[43] The Crown makes much of the fiscal sustainability aspect of pt 4A's purpose.Yet the evidence of Ms Kathryn Brightwell, from the Ministry, is that costings of the policy assumed it would be taken up by up to 1,600 people whereas it has only been taken up by 225 people as at November 2015. $23 million was originally budgeted for the new FFC services but only $6 million was spent. Similarly, the report15 Ministry of Health Funded Family Care Operational Policy (2nd ed, Ministry of Health, Wellington, 2016)Evaluation of Funded Family Care by Artemis Research, dated April 2015, found FFC funding had positive impacts for nine in every 10 FFC funded families but its overall effectiveness was constrained by its limited uptake by those who could potentially benefit from it.The challenge[44] Shane and Mrs Moody challenge the Ministry's decisions about funding of Shane's care as being unlawful. On their behalf, Mr Dale submitted the primary cause of action is that the funding decisions are in error of law in interpreting and applying policies inconsistently with the purposes of the Act and the Human Rights Act 1993. Mr Dale added that the decisions are inconsistent with Shane's dignity. Mr Dale also submitted the decisions are unreasonable. As fallback positions he submitted the funding decisions are unlawful because the policies are inconsistent with the Act and because they breach Shane's and Mrs Moody's legitimateexpectation of the funding they would receive under the Policy. Mr Dale sought orders setting aside the funding decisions, reassessing the application and declaring the FFC Policy is ultra vires and the Ministry acted unlawfully. Mr Dale said the case is important because it affects not just Shane but many others in the most vulnerable sector of our community and their families.[45] The Crown opposed all the causes of action. Mr Rishworth QC, for the Crown, said the proceeding attacks the philosophy and mechanics of the entire disability support system in a way which is perverse and the antithesis of the principles promoted by the Convention and the government's strategic goals.Issue 1: Are the funding decisions inconsistent with the policy?Submissions[46] Mr Dale submitted Shane needs full-time care 24/7. Since the Crown'spolicy is, generally, only to fund up to 40 hours of care by family members of persons with disabilities, Mr Dale said that is what Shane should have. He submitted the FFC Policy provides for payment up to 40 hours a week for "personal care" and "household management". The Crown has construed that so narrowly as to beunlawful in light of the purpose of pt 4A to overcome discrimination and in light of the Human Rights Act and the Bill of Rights. He also submitted nothing in the FFC Policy states oversight or supervision is excluded from what is funded and proceeding on the narrow basis it is excluded is an error of law. ACC case law, and the need to avoid discrimination, suggests a wider approach to "personal care" isrequired.16 And he submitted the Ministry's approach of assessing "unmet needs" iscircular, has been disparaged by the courts and should not be used by the Ministry to reduce FFC entitlements. Finally, Mr Dale submitted the minute by minute analysisof Shane's daily needs, including care in relation to his bodily functions, that is part of his needs assessment, is objectively degrading, demeaning and inhumane.[47] Mr Rishworth, for the Crown, submitted the case is about the number of hours of care Shane needs. He submitted the purpose of pt 4A was to fix what the courts had concluded was wrong with the previous policy – that family members were discriminated against. Section 70B defines family care policies to permitpersons to be paid "in certain cases" which are defined by the HCSS and FFC policies. They do not contemplate funding of supervision of persons with disabilities, only personal care and household management, which cannot amount to 168 hours of care per week. There is no category of disability support services funded by the Crown that includes 24-hour care outside a residential care home. "Personal care" and "household services" involve discrete tasks and do not include a carer's presencein a house, because there is no service of supervision. That interpretation is not discriminatory or unlawful. Mr Rishworth submitted the claim is not really a challenge to the FFC Policy but a claim that there should be another, or a different, policy. And he submitted what has been disparaged by the courts was not theconcept of unmet needs but reliance on "natural support" by parents as a reason fornon-payment. Mr Rishworth, for the Crown, submitted assessing need in terms of time is not demeaning or unreasonable.16 Estate of Simpson v ACC [2007] NZCA 247, [2007] NZAR 496; Rameka v AccidentCompensation Corporation [2015] NZHC 730, [2015] NZAR 685.Decision on the consistency of the funding decisions with the policy[48] First, I deal with the question of dignity. Mr Dale is surely correct that dignity is an important value underlying human rights in New Zealand, as it is in other jurisdictions. Section 23(5) of the Bill of Rights, reflecting art 10(1) of the International Covenant on Civil and Political Rights, recognises the need for thosedeprived of liberty to be treated with humanity "and respect for the inherent dignity of the person". Elias CJ in Taunoa v Attorney-General relied on that and otherprovisions in recognising the right "to be treated as human".17 And the relevance of dignity in this context is made quite clear by the first general principle of theConvention: "respect for inherent dignity, individual autonomy". That affects the interpretation of the policies at issue here because the Convention is one of NewZealand's international obligations and also because its principles are explicitly reflected in the DSS Principles stated in the Tier One HCSS Service Specification.[49] I cannot locate any case from other cognate jurisdictions which holds that measurement of the needs of persons with disabilities in terms of time infringes dignity. Some unit of measurement must be used to distinguish between persons of different needs. Time is one such possible unit of measurement and I do not consider the Policy is unlawful because it uses time to measure needs. The real argument seems to me to be about whether the funding decisions are based on accurateassessments of Shane's needs in terms of the Policy, interpreted lawfully.[50] Whether the funding decisions are inconsistent with the policy depends onthe extent to which Shane's care qualifies for funding under the policy. Thatdepends on the interpretation given to the terms "personal care" and "household services". Those terms are contained in the HCSS policy on which the FFC policy rests. The FFC policy is a legal instrument under pt 4A of the Act. Accordingly, interpretation of the FFC policy, and of those terms, should be approached using the usual legal principles of interpretation of text in light of purpose. Their interpretation must be consistent with the purposes of pt 4A of the Act, under which17 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [71], [74] and [79]. Andsee the references to dignity in other jurisdictions at [75] and Thomas J's endorsement of the right to dignity as "the key value underlying the rights affirmed in the Bill of Rights" in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [180].the FFC policy is promulgated, consistent with usual principles of administrative law. And their interpretation must be consistent with the rights and freedoms in the Bill of Rights, as provided by s 6. That is not affected by s 70E or pt 4A.[51] The issue here comes down to whether the meanings of "personal care" and "household management" services in the HCSS Tier Two Service Specification are confined to specific discrete tasks or whether they extend to supervision or oversight of a person with a disability. Unfortunately, the current text of cl 6.6 used to describe these terms refers to general and even vague purposes and does not provide explicit definitions. The best aids to interpretation are the examples inaccessibly provided in different parts of the policies and the methodology of assessment.[52] The definition of "household management" services in cl 6 centres on thepurpose of assisting a person "to maintain, organise and control their household/home environment". Depending on the level of need, a carer'ssupervision of a person with a disability could conceivably promote that purpose. But those words are general and do not easily apply to someone with the level ofShane's disabilities. Mrs Moody does not really assist Shane to maintain, organise and control his home environment. She does that for him.[53] The examples of household management services given in the policydocuments support the Ministry's interpretation, even though they are difficult to locate and do not rise to making this law accessible in any sense. The examples given in footnote 55 to paragraph 74 of the FFC Notice are discrete and specific:"helping to prepare meals or home cleaning". So are the examples in cl 2.4 of theFFC policy: "cleaning and cooking as well as some supports for the person to accesscommunity activities in certain circumstances". So were the non-exclusive examplesgiven in the 2002 and 2008 policies, of "household management tasks" and "household support" respectively concerned with meal preparation, laundry and cleaning. These examples all suggest supervising Shane – or being there to make sure he and the household are safe – are not "household services" in the sense that term is used in the HCSS, and therefore the FFC Policy.[54] Similarly, the definition of "personal care" services in cl 6.6 of the HCSS Tier Two Service Specification is very general: "assistance with activities of daily living".And it is expressed in terms of a purpose of enabling a person with disabilities "to maintain their functional ability at an optimal level". Depending on the extent of disability, some level of supervision might well assist "with activities of daily living"for that purpose. But almost any form of assistance might maintain functional ability at an optimal level. Such a general purpose does not help to define the services.[55] Again, the examples of personal care services given in footnote 55 to paragraph 74 of the FFC Notice, "assistance with showering and dressing," are discrete and specific. So are the examples in cl 2.4 of the FFC Policy: "showeringand consuming of food or assistance with night support in some cases". So were the non-exclusive examples given in the 2002 "personal caregiver tasks", concerned with personal hygiene, eating and dressing. Supervising Shane – or being there to make sure he and the household are safe – is not "personal care" in the sense that term is used in the HCSS, and therefore the FFC Policy.[56] These indications that the terms are defined with reference to discrete specific tasks are consistent with the methodology for their assessment in the FFC and HCSS policies. Clause 12 of the HCSS Tier Two Service Specification makes clear they are measured in terms of hours as determined by a NASC agency in relation to each person with a disability. That is reinforced by cl 2.2 of the FFC Policy. Clause 10 of the FFC Policy specifies a maximum of 40 hours a week for funding though cl 5.2 provides a process for exceptions. Tellingly, "supervision, assistance and support" isan explicitly specified component of CRSS residential care, but not of HCSS care.[57] So, on balance, I consider "household management" and "personal care"services in the HCSS and FFC policies are discrete specific services and not general supervision or oversight of a person with a disability. I go on to consider whether ACC case law, the purposes of pt 4A or the Bill of Rights support or contradict that meaning.[58] I do not consider the ACC case law cited by Mr Dale assists in the construction of the policies here. In Estate of Simpson v ACC the Court of Appealconsidered "constant personal attention" meant an injured person required some level of personal care over a 24 hour period for the purposes of ACC.18 In Rameka v Accident Compensation Corporation the High Court considered whether a carer wasa "household family member" for the purposes of ACC.19 Brown J noted thedefinition of "personal care" in cl 12 of sch 1 of the Accident Compensation Act 2001 as "physical assistance to move around and to take care of basic personal needssuch as bathing, dressing, feeding and toileting". Neither case assists with the interpretation of "personal care" or "household management" services in the policieshere. The ACC legislation has a different purpose and definitions. The definition of"personal care" for those purposes does not add to, or subtract from, theinterpretation I have arrived at above.[59] The purposes of pt 4A, set out in s 70A, are threefold: to fund support services provided by persons to their family members; to keep that funding within sustainable limits; and to affirm the principle that families generally have primary responsibility for the well-being of their family members. The generality of those purposes does not bite on the issue here. While funding is limited so that it is"sustainable", sustainability is said to be provided by the mechanisms spelt out in pt 4A, including the FFC policy promulgated under it. That is not an invitation to a court to assess the fiscal sustainability of the policy but a statement that the policy has been arrived at with fiscal sustainability in mind. The extent to which the budgeted cost of these services has not been taken up does not affect their interpretation.[60] Neither do the operational sections of pt 4A assist in interpreting the terms at issue in the Policy. In particular, the definition of support services in s 70B does not throw any light on the scope of the services intended to be funded. Neither does the legislative history of the Amendment Bill that resulted in pt 4A. It only records theMinister of Health's understanding that funding would be allocated to adults with disabilities to employ family members to provide personal care and household management they are assessed as needing.2018 Estate of Simpson v ACC, above n 16, at [23].19 Rameka v Accident Compensation Corporation, above n 16.20 (2013) 690 NZPD 10117.[61] Finally, interpretation in light of the right to freedom from discrimination under the Bill of Rights does not suggest a different approach, on the evidence before me. The discrimination which gave rise to the Atkinson litigation and the enactment of pt 4A lay in the funding of carers depending on their family relationship with the person with a disability who is cared for. But the definitions of the terms at issue in the Policy are now no different for care by family members than by contracted service providers. There is no direct discrimination on the face of the Policy.[62] It might make a difference if the plaintiffs could point to evidence thatsomeone in Shane's position whose entire HCSS allocation is provided by a contracted service provider would receive materially higher funding than Shane. That might constitute evidence of indirect discrimination on the ground of family status under s 19 of the Bill of Rights. If that could not be justified under s 5, asseems likely given the Court of Appeal's judgment in Atkinson, s 6 would require a court to interpret the terms of the policies so as to avoid such a discriminatory effect, if they can be so interpreted. Such an argument would not be prohibited by s 70E, as it would be an argument a family care policy does not breach human rights rather than an allegation that it does.[63] However, the terms of the HCSS Service Specification appear, on their face, not to discriminate on the ground of family status. And there is no evidence beforeme of what funding a person in Shane's position would receive if not cared for by a family member. Given that, the Bill of Rights does not alter my interpretation of the policies.[64] I consider the funding decisions in relation to Shane are consistent with themeaning of "personal care" and "household management" services as those terms are used in the policies.Issue 2: UnreasonablenessSubmissions[65] Mr Dale also submitted, in light of Shane's needs, the assessment of 11 or 19or 21 hours of funded care is absurd and unreasonable in terms of both Associated Provincial Picture Houses, Limited v Wednesbury Corporation and Hu v Immigration and Protection Tribunal.21 Mr Rishworth submitted the application to Shane of the HCSS specification as interpreted by the Crown is not unreasonable.Law[66] Unreasonableness has long been recognised as a ground of judicial review, albeit circularly, in Wednesbury, as a decision that no reasonable authority could ever have come to. In Hu v Immigration and Protection Tribunal I suggested an alternative version of unlawful unreasonableness that both parties agreed accurately reflects the law: where a decision lacks an adequate evidential foundation or the evidence is inconsistent or contradictory of it, or the only reasonable conclusion contradicts the decision.22 The Court of Appeal, in Canterbury Regional Council v Independent Fisheries Ltd and recently in Quake Outcasts v Minister of Canterbury Earthquake Recovery, recognised the standard of review for reasonableness may be provided by legislation and may vary with context.23Decision on unreasonableness[67] I do not consider the funding decision is unreasonable for the same reasons, set out above, that I do not consider it inconsistent with the Policy. As noted above, the legislation here does not provide a standard which suggests the funding decisionregarding Shane's care is unreasonable. And, absent discrimination, when the policyis interpreted correctly the decision is not unreasonable. There is an adequate evidential foundation consistent with the decision which is not contradicted by the only reasonable conclusion.21 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223; Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508.22 Hu at [30]–[31], summarised in [2].23 Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 578 at [21]–[22]; Quake Outcasts v Minister of Canterbury Earthquake Recovery & Anor [2017] NZCA 332 at [72]–[73].Issue 3: Is the policy inconsistent with the Act?[68] As a fallback, Mr Dale also submitted the policy is unlawful because it conflicts with s 3 of the Act interpreted in light of the Bill of Rights, the Human Rights Act and the Convention. Mr Rishworth submitted the purpose of pt 4A is toallow family carers to be paid and the FFC policy does that, "within sustainable limits" as provided in s 70A, following s 3(2).[69] Mr Dale was right to regard this as a fallback argument. It is not sustainable. Section 3 of the Act is the purpose clause, not an operative provision. I found above that the purpose of the Act does not affect the consistency of the funding decision with the policy. Neither does it affect the consistency of the policy with the Act. The policy is authorised to be made under pt 4A. The extent of funding available, as provided in the terms of the policy, does not depend on the purpose clause of the Act. Both that clause in s 3(2), and the purpose clause of pt 4A in s 70A, recognise the provision of services is subject to fiscal considerations. The policy itself, with its status as a legal instrument conferred by pt 4A, determines entitlement to services. Accordingly, the policy is not inconsistent with the Act.Issue 4: Was there an enforceable substantive legitimate expectation?Submissions[70] Finally, as another fallback argument, Mr Dale submitted the law recognises a reasonable legitimate expectation of a substantive right or interest arising from a clear, unambiguous and unqualified representation. He relied on Talleys Fisheries Ltd v Cullen in New Zealand,24 and Pham v Secretary of State for Home Departmentand Mandalia v Secretary of State for Home Department in the United Kingdom.25Mr Dale submitted Shane and Mrs Moody had a substantive legitimate expectationthat the Crown would interpret the policy in accordance with the plaintiffs'arguments in issue 1 above. That expectation is said to have arisen out of the24 Talleys Fisheries Ltd v Cullen HC Wellington CP 287/00, 31 January 2002, adopted in Sinclair v Accident Compensation Corporation [2012] NZHC 406, [2012] NZAR 313.25 Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591;Mandalia v Secretary of State for the Home Department [2015] UKSC, [2015] 1 WLR 4546; and see Mark Elliott "From Heresy to Orthodoxy: Substantive Legitimate Expectations inEnglish Public Law" in Matthew Groves, Greg Weeks (eds) Legitimate Expectations in the Common Law World (Hart Publishing, 2017) at ch 10.Minister of Health's views as widely expressed, including in Hansard discussion of the Amendment Bill, that the Act would provide a compassionate and responsible funding solution to the 1,600 families covered.[71] Mr Rishworth submitted this is a claim that the law must be properly applied, which adds nothing to the other claims. He said the claim is for a substantive expectation of 40 hours of funded care which is not supported on the facts or available at law. And he submitted a legitimate expectation cannot be sourced in a ministerial statement in the House of Representatives since that would offend art 9 of the Bill of Rights 1689.26Law of substantive legitimate expectation[72] The courts have expressed mixed views in New Zealand as to whether substantive, as opposed to procedural, legitimate expectations can be enforced by way of judicial review. Kós J has characterised the High Court as having "dancedwith the doctrine for a long time, but seldom taken it home".27 In Oosterveen v Ministry of Business, Innovation and Employment, without taking the doctrine home,Collins J acknowledged there is "a degree of reluctance" in New Zealand torecognise the concept but, on the basis of English authority, identified five relevant factors to founding such a claim:28(1) a public authority has given a clear and unambiguous undertaking;(2) the undertaking was reasonably understood to mean what the applicant claims;(3) the decision maker knew of the representation and chose to act contrary to it;(4) the applicant has suffered some detriment by relying on the representation; and26 David McGee Parliamentary Practice in New Zealand (3rd ed, Dunmore Publishing, Wellington, 2005) at 629.27 Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474 at [184].28 In Oosterveen v Ministry of Business, Innovation and Employment [2014] NZHC 1709, [2014] NZAR 1091 at [50] and Re Family First New Zealand [2015] NZHC 1493, (2015) 4 NZTR 25- 014 at [99].(5) the decision-maker's conduct cannot be objectively justified as beingin the public interest and a proportionate response to the circumstances of the case.[73] Collins J's proposed approach is consistent with more general New Zealandappellate authority about legitimate expectations set out by the Court of Appeal inComptroller of Customs v Terminals (NZ) Ltd.29 The Court there considered a claim of substantive legitimate expectation but, in its judgment, did not distinguish between substantive and procedural expectations in identifying the three steps generally required to establish a legitimate expectation: to establish the nature of the commitment made by the public authority; to determine whether the plaintiff'sreliance on it is legitimate; and to decide what remedy, if any, should be granted.30[74] I consider New Zealand judicial reluctance about claims of substantive legitimate expectations often derives from judicial concerns that it might allow the role of the decision-maker to be usurped in two ways. The first is that it is not usually legitimate to fetter a decision-making discretion with an expectation of a particular substantive outcome. The second is that it is rarely appropriate to grant substantive relief.31 Both concerns can be taken into account in the application of the Terminals concept of legitimate expectations and in the way Collins J suggests. Rather than ruling out any possibility of a substantive legitimate expectation having legal traction, I consider it better to examine such a claim using those approaches.Decision on substantive legitimate expectation[75] Having danced with the doctrine I again leave it disappointed. I do not consider the claim to a substantive legitimate expectation is well-founded here. To the extent this is a claim that the law must be properly applied, it adds nothing to the other claims, which I have rejected above. For the same reasons, it follows that theplaintiffs' expectation of 40 hours of funded care was not legitimate. In the absence of discrimination, it was not founded on a lawful interpretation of the policy. It was not founded on the Act. An expectation of an outcome inconsistent with the law is not legitimate.29 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137.30 At [125]–[127].31 At [155].[76] I also agree that construing an enforceable legitimate expectation from a ministerial statement in Parliament would infringe art 9 of the Bill of Rights 1689. And it would breach s 11(d) of the Parliamentary Privilege Act 2014. Ministers should not be constrained in statements in the House of Representatives by the possibility of establishing enforceable legitimate expectations.Result[77] I decline the application for judicial review. If the parties cannot agree on costs the plaintiffs have leave to file a memorandum of no more than five pages within 10 working days of this judgment and the Crown has leave to file the same within 5 working days of that happening...................................................................Palmer J