CHAMBERLAIN V MINISTER OF HEALTH [2018] NZCA 8

CHAMBERLAIN V MINISTER OF HEALTH [2018] NZCA 8 [7 February 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA460/2017[2018] NZCA 8BETWEEN SHANE BARRY CHAMBERLAINFirst AppellantAND DIANE MOODYSecond AppellantAND MINISTER OF HEALTHRespondentHearing: 31 October 2017 and 1 November 2017Court: Harrison, Asher and Brown JJCounsel: P J Dale for AppellantsP T Rishworth QC and V McCall for RespondentJudgment: 7 February 2018 at 12.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The decision granting the first appellant a maximum of 17 hours of fundedfamily care weekly for disability support services provided by the secondappellant is set aside.C The respondent is directed to reassess the first appellant's application in amanner consistent with the purposes of the New Zealand Public Healthand Disability Act 2000 and the content of the family care policy as set outin this judgment.D The respondent is ordered to pay costs to the appellants on a band A basisas for a standard appeal together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] Shane Chamberlain is a middle-aged man with a profound level of intellectualdisability.1 His elderly mother, Diane Moody, has been his fulltime carer for almostall his life. The Ministry of Health funds Shane for his mother's performance of17 hours of care weekly as well as funding for third parties to perform additionalservices. Shane and his mother claim that he is entitled to funding for family care upto the maximum of 40 hours weekly. Both say that the Minister of Health, through thecontracted agency of private assessors, has erred in exercising a statutory power ofdecision.[2] Shane, acting through his litigation guardian Jane Carrigan, and Mrs Moodyappeal against Palmer J's judgment in the High Court declining his application for adeclaration that the Minister's funding decision was unlawful for want of consistencywith the relevant family care policy (the Policy) under the New Zealand Public Healthand Disability Act 2000 (the Act).2 The appeal requires our determination of themeaning of phrases used in layers of statutory provisions and derivative instrumentsto identify the relevant disability support services eligible for funding. Palmer Jdescribed these documents, with a degree of understatement, as "complex and difficultto follow".3 The resultant challenge for impaired persons in understanding the natureand scope of their eligibility is obvious.1 As in the judgment under appeal and the weight of evidence before us, we shall refer throughoutthis judgment to Shane by his forename.2 Chamberlain v Ministry of Health [2017] NZHC 1821, [2017] NZAR 1271 [HC judgment].Palmer J's rejection of the alternative claims of unreasonableness, statutory inconsistency andbreach of substantive legitimate expectation were originally challenged on appeal but not pursuedin argument before us.3 At [29].[3] The ultimate question, however, is confined. It is whether the Judge wascorrect that Shane's funding eligibility is limited to his mother's performance ofdiscrete services identifiable within the phrases "personal care" and "householdmanagement" where they are used in the relevant specifications;4 or whether, as theappellants submit, these categories of eligibility must encompass the provision ofbroader services such as safety supervision and intermittent care in the light of thepurpose for which family care is funded.Background facts[4] The relevant facts are derived principally from Mrs Moody's detailed anduncontested affidavit.[5] Shane is 51 years of age. He suffers the result of severe birth-relatedcomplications caused by the misuse of forceps during delivery. He is paralysed downhis right side. He was also born with Williams Syndrome, a developmental disordercaused by genetic abnormality which affects many parts of the body. It was notdiagnosed until he was aged about 30 years.[6] Shane is Mrs Moody's eldest child. She is now 76 years old. She and herformer husband divorced in 2003 and he died in 2007. She has cared for Shane in thefamily home all her life except for a few years when he was in an adult care facility.[7] Shane is incapable of normal day-to-day self-care. He has no genuine ormeaningful understanding of anything other than his most basic likes or dislikes.He is able to give his name, although it is difficult to understand him. He gives hisage as nine years and says he lives in Taupō. In reality he resides in Beach Haven,Auckland. He is able to count with assistance up to 20. He can also recite the alphabetwith assistance. He has no traffic sense and is unable to cross a road or catch a bus onhis own. He does not drive and is unable to do up his seatbelt.[8] Shane is unable to read or write and has no conceptual understanding of eithermedium. He is able to listen to the reading of a book but at the basic level of a child's4 At [51]–[57].story like the Three Little Pigs. Shane is also autistic, and he is easily mesmerised bycertain things — such as a big picture of monkeys in a book. He is able to go to thecinema with his mother but only on a restricted basis. He spends most of his timesitting in his bedroom. He listens endlessly to his radio, or CD music and stories. Heloves Chinese television and his favourite DVDs involve aeroplanes and the Muppets.[9] Shane's behaviour is also repetitive, another autistic characteristic. He lovesfixed-wing aircraft and helicopters — living near the Whenuapai airbase provides himwith entertainment. He has age-inappropriate special toys of the type an 18-month-oldchild would enjoy, such as talking animals. His favourite activity is using the familyspa and swimming pool. In the winter, he will sit in the spa for hours at a time or bythe pool holding a hose over it to fill it up. Mrs Moody must keep him within sightalways.[10] Mrs Moody takes Shane out of the house whenever and wherever possible.He likes attending concerts by the Royal New Zealand Navy Band and visiting the zoowhere he sits for hours watching elephants — he has no interest in the other animals,not even monkeys. He loves concrete trucks and enjoys sitting at the Devonport Wharfto watch passenger ferries. He is, however, unable to go to public swimming poolsbecause of difficulties controlling his bowels.[11] Mrs Moody is able to take Shane to visit centres like Taupō andPalmerston North. She last took him overseas to Rarotonga in 2009. He is enjoyingthese trips less with age.[12] Shane sleeps fairly well but he must get up regularly during the night to go tothe toilet. He can manage most of these nocturnal visits on his own because his motherhas installed motion-sensor lights. However, his internal organs regularly fail him andMrs Moody must clean up the lavatory the following morning. While he usuallyreturns to bed following these visits, it is not unusual for Shane to sit in his chair andturn on his television or the radio. Some nights he suffers reflux or leg cramps,requiring his mother to be up to care for him.[13] Mrs Moody's daily routine starts by cleaning out the lavatory and bathroomand preparing breakfast for Shane, followed by showering and dressing him. He lovesmilky coffee and during the course of a morning will have as many cups as he isallowed. Mrs Moody must make the coffee for him. If the day is spent at home, Shanewill usually alternate between his room and the spa pool. If he is in the spa his mothermust ensure that he is always hydrated.[14] Mrs Moody prepares Shane's lunch around midday, followed by afternoon teaand an early dinner, usually about 5 pm. This routine helps to contain his reflux.His propensity for choking requires her to be particularly careful in food preparationand she must watch him consume his meals.[15] Shane has suffered from lifelong ill-health, particularly affecting the heart andcardiovascular system, which is typical of those born affected withWilliams Syndrome. He only began to walk at five years of age. He has scoliosis andwalks with a distinctive gait. He is vulnerable to falls, causing joint and bone fracturesand bruising. He has asthma and uses an inhaler from time to time. He is particularlysusceptible to anxiety and reacts badly to many drugs — Mrs Moody suspects hishistory of self-harm by biting can be attributed to hallucinatory reactions fromprescription medication.[16] Mrs Moody describes hospital visits with Shane as "fraught affairs" where sheis unable to leave him alone. He has had two operations to improve his urine flow orlack of it. He often has diverticulitis — an inflammation of the bowel — and heendures a generally sensitive stomach to certain foods. He suffers a chronic lack ofbowel control which is worsening with age. His mother is required to take himfrequently to hospital, doctor, specialist, dental and other medical appointments.[17] Between the ages of 21 and 25 years, Shane spent his days at the IHC ShelteredWorkshop in Northcote where he participated in programmes with other adults whoshared his profound intellectual disabilities. Mrs Moody withdrew him from thisinstitution after he was violently assaulted by another attendee. Despite trying otherfacilities, she has been unable to find suitable care for Shane since that incident.[18] Mrs Moody says this about Shane's care:I know if Shane was living in residential care he would be a very differentperson. His health and his anxiety would be two areas that I am sure wouldbe adversely impacted upon, just by the very nature of residential care(changing staff/different staff during the day and alternating flatmates).I'm sure Shane would be placed on anti-anxiety drugs for the benefit of staffand possibly other residents. I have no doubts that medication wouldeffectively be the end of him. Even if it wasn't, Shane would really strugglewith the lack of continuity. In summary I am in no doubt that if Shane livedin residential care, he would have been a lot sicker. Part of keeping on top ofShane's health is being very "in tune" with changes in his body, andunderstanding when he appears to be sickening. Realistically with rotatingstaff, and his inability to identify his own ailments both would combine toensure that many of his health conditions would not be identified until it wasserious.[19] Mrs Moody does not refer to the inestimable benefits for Shane and the stateof her constant and continuous availability to care for him within the security of thehome environment and of the quality of the care provided with a mother's devotion toher son's continued wellbeing.[20] Shane is, Mrs Moody says, "my life". He requires her constant care for24 hours a day, seven days a week. It is plain that Shane can never be left unattendedand unsupervised.The funding decision[21] The Ministry of Health is responsible for administering the provision of andpayment for disability support services. The Ministry engages Needs Assessment andService Coordination (NASC) providers to conduct individualised needs assessmentsto determine funding eligibility and coordinate services to ensure support needs aremet.[22] The Ministry contracts with the Taikura Trust, a charitable trust, to act as aNASC agency. In May 2014 Taikura undertook an assessment of Shane's needs insupport of his application for funded family care. Taikura, and later the NASCNational Reviewer, assessed Shane as having "high end" disability-related needs byreference to the Ministry's Support Package Allocation (SPA) tool, which waspublished in May 2010 to "promote transparent, equitable and robust decisionmaking" in NASC. The SPA tool sets out levels of need in five bands ranging fromVery Low to Very High. Shane met the eligibility criteria for the second highest band,placing him in a position where he could qualify for up to $900 of support servicesper week. The highest band extends to $1,500 per week.[23] Shane was assessed originally as being entitled to only 11 hours of funding forhis mother's care services. Assessments are quantified by use of time-measurementtools allocated as hourly units for defined functions. In Taikura's initial advice toMrs Moody on 7 July 2014, the 11 hours of funded family care comprised:(a) 7.5 hours of household management per week — "Shane requiresassistance to make his bed, change his linen, assistance for mealpreparation, chopping meat or solid foods, dishes, vacuuming, laundry,household safety & security and managing his finances"; and(b) 3.5 hours of personal care per week — "Shane requires assistance forwashing hair & body, shaving, finger & toe nails, washing his face,brushing his teeth & hair, wiping after toilet, supervision forappropriate clothing, dressing, zips etc."Family care is funded at the minimum wage, which was $14.25 an hour before tax.Thus the initial assessment translated to gross payments of $156.75 per week forMrs Moody's constant care.[24] Mrs Moody protested. In a letter to her dated 30 July 2014, Taikura explained:The criteria for the allocation of [funded family care] support is currentlylimited to the identified personal care and household management tasksrequired to support a person's disability. While NASC recognises the24/7 support that you have provided and continue to provide for Shane,[funded family care] cannot fund support which is not directly related to theprovision of personal care and household management tasks.[25] Mrs Moody maintained her objection to Taikura's assessment. The Ministryengaged AccessAbility Otago, another NASC agency, to review Taikura's work.On 7 November 2014, after completion of the peer review, the Ministry notifiedMrs Moody that her son's eligibility had been revised to 19 hours of care weekly.She was to provide 15 hours of that care, with the other four hours of funding allocatedto the outside provider Geneva Healthcare.[26] In September 2015 Shane and Mrs Moody applied to the High Court forjudicial review of the funding decision made by the Ministry through the agency ofthe NASC providers. Shortly after the application for judicial review was filed,Taikura undertook a further assessment of Shane's needs. The final support planprepared for Shane on 31 May 2016 provided for: (a) 17 hours weekly forMrs Moody's care services; (b) four hours of care from an external provider;(c) an additional 30 days of carer support per year; and (d) 12 days of respite supportfor Mrs Moody per year.[27] It is common ground that the final support plan is our focus in examining thedelegated exercise of the Minister's funding decision under the relevant statutorypower, even though it post-dated the initial application for judicial review.Mrs Moody originally maintained that Shane is eligible for the maximum 40 hours offunded family care. However, before us Mrs Moody's counsel, Mr Dale, modified herposition in the manner which will become apparent in our judgment.Statutory power for the funding decision[28] The NASC process is just one of many government functions now contractedout to private-sector organisations.5 It is important to locate the legal basis for theprocess and the ultimate funding decision. The relevant statutory power here iss 10(2)(a) of the Act, which empowers the Minister of Health to negotiate and enterfunding agreements for the provision of disability support services:10 Crown funding agreements(1) In this Act, Crown funding agreement means an agreement that theCrown enters into with any person, under which the Crown agrees toprovide money in return for the person providing, or arranging for theprovision of, services specified in the agreement.(2) The Minister may, on behalf of the Crown,—5 Compare Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 609,[2017] 2 NZLR 470 at [3]–[8].(a) negotiate and enter into a Crown funding agreementcontaining any terms and conditions that may be agreed; and(b) negotiate and enter into an agreement that amends a Crownfunding agreement; and(c) monitor performance under a Crown funding agreement.[29] The exercise of that power, which is the focus of this claim,6 is however,fettered by s 70C. Payment for services provided by a family member is expresslyprohibited unless permitted in these terms:70C Persons generally not to be paid for providing support services tofamily membersOn and after the commencement of this Part [4A], neither the Crownnor a DHB may pay a person for any support services that are, whetherbefore, on, or after that commencement, provided to a family memberof the person unless the payment is—(a) permitted by an applicable family care policy; or(b) expressly authorised by or under an enactment.[30] The arguments advanced by both counsel before us share the underlyingassumption that the Minister and his agents must exercise the s 10(2)(a) discretionarypower where an application for funded family care is permitted by the eligibilitycriteria in the Policy or expressly authorised by another enactment.7 That is why ourinterpretation of the Policy in its broader legal framework is of decisive importance tothis appeal.Legal framework for the funding decisionInternational obligations6 HC judgment, above n 2, at [20].7 Compare Attorney-General v Haronga [2016] NZCA 626, [2017] 2 NZLR 394 at [65]; andCommissioner of Inland Revenue v Michael Hill Finance (NZ) Ltd [2016] NZCA 276, [2016] 3NZLR 303 at [80].[31] New Zealand is a party to the Convention on the Rights of Persons withDisabilities and its Optional Protocol.8 Our interpretation of all relevant legal andpolicy instruments must account for New Zealand's international obligations.9[32] The overarching purpose of the Convention is instructive:Article 1: PurposeThe purpose of the present Convention is to promote, protect and ensure thefull and equal enjoyment of all human rights and fundamental freedoms by allpersons with disabilities, and to promote respect for their inherent dignity.Persons with disabilities include those who have long-term physical, mental,intellectual or sensory impairments which in interaction with various barriersmay hinder their full and effective participation in society on an equal basiswith others.[33] The following article is also relevant to Shane's situation:Article 19: Living independently and being included in the communityStates Parties to the present Convention recognize the equal right of allpersons with disabilities to live in the community, with choices equal to others,and shall take effective and appropriate measures to facilitate full enjoymentby persons with disabilities of this right and their full inclusion andparticipation in the community, including by ensuring that:a. Persons with disabilities have the opportunity to choose their place ofresidence and where and with whom they live on an equal basis withothers and are not obliged to live in a particular living arrangement;b. Persons with disabilities have access to a range of in-home, residentialand other community support services, including personal assistancenecessary to support living and inclusion in the community, and toprevent isolation or segregation from the community;c. Community services and facilities for the general population areavailable on an equal basis to persons with disabilities and areresponsive to their needs.(Our emphasis.)8 Convention on the Rights of Persons with Disabilities 2525 UNTS 3 (signed 30 March 2007,entered into force 3 May 2008); Optional Protocol to the Convention on the Rights of Personswith Disabilities 2518 UNTS 283 (signed 30 March 2007, entered into force 3 May 2008).9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24]; and New Zealand AirLine Pilots' Assoc Industrial Union of Workers Inc v Director of Civil Aviation [2017] NZCA 27,[2017] 3 NZLR 1 at [56]–[58].General statutory context[34] One way in which New Zealand fulfils its international obligations is throughthe funding and support provided by the Ministry of Health under the Act. As noted,the Act authorises the Minister to negotiate and enter into funding agreements wherebythe Crown pays people to provide specified services such as disability support.10The primary statutory purpose is "to provide for the public funding and provision of disability support services" in order to pursue several objectives.11 The two mostdirectly relevant objectives are: (a) "the promotion of the inclusion and participationin society and independence of people with disabilities"; and (b) "the best care andsupport for those in need of services".12 The Minister is to pursue these objectives"to the extent that they are reasonably achievable within the funding provided".13Disability support services include goods, services and facilities "provided to peoplewith disabilities for their care and support or to promote their inclusion andparticipation in society, and independence"; or goods, services and facilities providedfor incidental or related purposes.14[35] Section 8(2) requires the Minister for Disability Issues to adopt a strategy"to provide the framework for the Government's overall direction of the disabilitysector in improving disability support services". The New Zealand Disability Strategy2016–2026 (the Disability Strategy) is the most recent version.15 The document adoptsthe voice of impaired persons to describe a future New Zealand in which eightaspirational objectives have been achieved. One is particularly relevant to Shane'scase — to have "the highest attainable standards of health and wellbeing" for personswith disabilities:16We have choice and control over all the supports and services we receive, andinformation about these services is available to us in formats that areaccessible to us. We are not secluded within services, and not segregatedfrom or isolated within our communities.10 New Zealand Public Health and Disability Act 2000, s 10.11 Section 3(1).12 Section 3(1)(a)(ii)–(iii).13 Section 3(2).14 Section 6(1).15 Office for Disability Issues New Zealand Disability Strategy 2016–2026 (Ministry for SocialDevelopment, November 2016).16 At 28.The importance of belonging to and participating in our community to reducesocial isolation, and increase our overall wellbeing, is recognised andsupported. [36] Section 88 creates an artificial contractual relationship between a person withdisabilities and his or her carer. The receipt of payments made by the Crown in returnfor disability support services, whether performed by a family member or a third party,is deemed to be the provider's acceptance of the terms and conditions contained in anotice of general application.17 The relevant notice must be published in the Gazettebefore it takes effect.18[37] Section 88 appears to be directed more to the person providing disabilitysupport services under a funding arrangement than to the person with disabilities.However, as we shall describe, in this case it has been used to set up a legal structurewhereby Shane receives the funds and then pays them to his mother. Despite Shane'sobvious incapacity to manage his affairs, Mrs Moody is effectively his subcontractoror employee. As Palmer J noted, Mrs Moody is unable to comprehend the Ministry'streatment of her as Shane's employee.19Part 4A of the Act[38] The history to this artificial arrangement is important. Until very recently,the Ministry of Health's policy was to refuse payment to the spouses or resident familymembers for provision of support services to people with disabilities. However,in what is known as the Atkinson litigation, the Human Rights Review Tribunal, theHigh Court, and finally a Full Court of this Court held that the policy discriminatedunlawfully on the basis of family status contrary to s 19 of the New Zealand Bill ofRights Act 1990.20 The Government responded to the Atkinson decisions by agreeingto allow some funding for parents or resident family members to care for adults withdisabilities.17 Section 88(1)(a).18 Section 88(3).19 HC judgment, above n 2, at [12].20 Atkinson v Ministry of Health [2010] NZHRRT 1, (2010) 8 HRNZ 902; aff'd (2010) 9 HRNZ 47(HC) and [2012] NZCA 184, [2012] 3 NZLR 456.[39] This funding was made available by creating a statutory mechanism enablingfamily members to obtain access to Home and Community Support Services (HCSS),a pre-existing set of entitlements along with Community Residential Support Services(CRSS). Entitlement to HCSS was previously limited to three categories of in-homeservices provided by contracted third parties — personal care, household management,and sleepover care or night support. The ambit of these categories assume someimportance in our decision.[40] Parliament enacted the New Zealand Public Health and Disability AmendmentAct 2013 shortly after the Atkinson decisions as the means of introducing pt 4A to theprincipal Act. The legislation was passed under urgency without public consultationor select committee scrutiny.21 In express response to this Court's finding of unlawfuldiscrimination, pt 4A of the Act recognised the eligibility of specified family membersto enter into Crown funding agreements to provide disability support services.22This entitlement was subject, however, to purposive limitations:70A Purpose of this Part(1) The purpose of this Part [4A] is to keep the funding of support servicesprovided by persons to their family members within sustainable limitsin order to give effect to the restraint imposed by section 3(2)[objectives are to be pursued to the extent that they are reasonablyachievable within the funding provided] and to affirm the principlethat, in the context of the funding of support services, familiesgenerally have primary responsibility for the well-being of theirfamily members.(Our emphasis.)The Policy[41] The Policy is the source of Shane's entitlement to receive funded family care.However, in restricting the scope of the Minister's statutory power to enter funding21 See Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449 at [84]; and Philip AJoseph "Constitutional Law" [2015] NZ L Rev 683 at 699–705.22 New Zealand Public Health and Disability Act, s 70B(2).agreements, the Policy is an instrument with direct force of law.23 We endorsePalmer J's general approach to its interpretation in these terms:[50] The [Policy] is a legal instrument under Part 4A of the Act.Accordingly, interpretation of the [Policy], and of those terms, should beapproached using the usual legal principles of interpretation of text in light ofpurpose. Their interpretation must be consistent with the purposes of Part 4Aof the Act, under which the [Policy] is promulgated, consistent with usualprinciples of administrative law. And their interpretation must be consistentwith the rights and freedoms in the [New Zealand] Bill of Rights [Act], asprovided by s 6.[42] The Policy is defined by the Act as:24(a) any statement in writing made by, or on behalf of, the Crown or by, oron behalf of, the District Health Board that permits, or has the effect ofpermitting, persons to be paid, in certain cases, for providing supportservices to their family members; and(b) includes any practice, whether or not reduced to writing, that has thesame effect as a statement of the kind described in para (a), being apractice which was followed by the Crown or by a District HealthBoard before the commencement of pt 4A.[43] We endorse also Palmer J's concerns about the legal uncertainties arising fromthis nebulous definition:[26] The inclusion in the definition of family care policy in (b), of certainpractices "whether or not reduced to writing", is inherently unsatisfactory interms of the rule of law. The effect of Part 4A is to confer legal status onfamily care policies which means they must be interpreted as such. It isdifficult to interpret a practice that has not been reduced to writing as a legalinstrument and it should not be regarded as, or defined to be, one. That is nothelped by the power accorded a public servant in s 70F to define the terms ofsuch an unwritten practice retrospectively. Wisely the Crown, in this case,does not rely on any unwritten practice.23 See also [30] of this judgment.24 New Zealand Public Health and Disability Act, s 70B(1), definition of "family care policy".[44] Despite its broad definition, s 70D(1) provides formal powers for the Ministerof Health to adopt, change, cancel or replace the Policy, which can include one or moreof the following in its content:25(a) Cases in which persons may be paid for providing support services tofamily members, including, without limitation, by reference to one ormore of the following matters:(i) the nature of the familial relationship between the person whoprovides the support services and the family member to whomthe support services are provided;(ii) the impairment or condition of the family member to whom thesupport services are provided, which may include references tothe effects of the impairment or condition or the degree of itsseverity, or both;(iii) the age of the family member to whom the support services areprovided;(iv) the place of residence of the family member to whom the supportservices are provided;(v) the place of residence of the person who provides the supportservices; and(vi) the needs of the family member to whom the support servicesare provided and the needs of his or her family.(b) The conditions that must be satisfied before payments for supportservices provided to a family member are made.25 Section 70D(3).(c) The rates, or ways of setting the rates, of payment for support servicesprovided to family members, which may be lower than the rates ofpayment for comparable support services provided to persons who arenot family members.(d) The limits on funding for support services provided to a family member,which may be expressed in any way, including by limiting the amountsthat may be paid or the number of hours for which payment may beclaimed.[45] This detailed exposition suggests that the Policy itself creates substantiveentitlements to disability support services. However, the Crown's position advancedby Mr Rishworth QC is that the Policy is a procedural mechanism only, designed toprovide the same services which predated pt 4A. In Mr Rishworth's submission, pt 4Adid not change the scope and nature of funded care services but simply extended thecategories of those eligible for payment. He notes that assessments for eligibility aremade as they always were by NASC providers using the SPA tool.[46] Palmer J held that the Policy adopted under s 70D(1)(a) comprises two maindocuments: (a) the Funded Family Care Notice 2013 (the Notice), which refers to(b) the Funded Family Care Operational Policy (the Operational Policy).26 The Judgeexcluded both the HCSS and CRSS from the definition of a family care policy for thepurpose of pt 4A.27 But earlier he acknowledged that "pt 4A confers on [HCSS]policies the status of legal instruments and their text and purpose must be interpretedaccordingly".28[47] In our view, the Policy incorporates the relevant content of theHCSS specifications in order to function in the way intended by Parliament. It setsout whether a payment to a family carer is permitted and thereby provides thenecessary limits for the Minister and his agents in exercising the statutory power toenter funding arrangements. Therefore we cannot accept Mr Rishworth's submission26 HC judgment, above n 2, at [38]–[42].27 At [38].28 At [30].that the Policy is a mere conduit to the underlying entitlements. Instead, as Palmer Jnoted: "The [Policy] itself, with its status as a legal instrument conferred by Part 4A,determines entitlement to services."29 Our construction is borne out by the expresscontent of the uncontested components to the Policy which we shall next address.The Notice[48] The Notice, issued by the Minister of Health and published in the Gazettepursuant to s 88, came into effect on 1 October 2013 and is incorporated expressly aspart of the Policy.30 Its purpose is to set out "the funding arrangements of theGovernment's [Policy] that are required to enable the Ministry to pay a disabled personto receive funded family care, and for that disabled person to use that funding toemploy a family carer".31 The language of employment, to which we have referred,is used throughout the Notice to describe the relationship between the person withdisabilities and the family carer. The Crown accepts, however, that this statement is amere fiction which is not subject to the Employment Relations Act 2000, and thatmany persons with disabilities are so impaired that they do not have the necessarycapacity in law to employ another person.[49] The named parties to the Notice are the Minister of Health and the person withdisabilities.32 The Notice also recognises the responsibilities of the family carer, theMinistry and its agents, including the NASC agencies and the so-called Host assignedby the Ministry to facilitate the arrangement and provide ongoing advice.33The five-way relationship between these various parties is guided by a sharedacknowledgement that:34(a) the person with disabilities has the right to accept and manage his orher responsibilities;29 At [69].30 "Funded Family Care Notice 2013" (26 September 2013) 131 New Zealand Gazette 3670, cls 3,4 and 8.31 Clause 9.32 Clause 5.33 Clauses 5, 11 and 72, definition of "Host".34 Clause 12.(b) choices on how those with disabilities live their lives at home arerespected;(c) the unique dynamics of the home and family/whānau/aiga setting arerespected;(d) the contribution of family carers, with the assistance of other membersof the family, is valued; and(e) a partnering relationship among the parties will ensure that the interestsof the person with disabilities are promoted.[50] Beyond setting out these principles, the Notice largely provides for thepayment, monitoring and auditing of funded family care, referring throughout and inthe endnotes to the Operational Policy as the source for provision and payment ofdisability support services. Its definition of "home" assists in identifying the scope ofservices eligible for funding by describing the relevant setting for their provision asfollows: "the disabled person's usual place of residence, or any other place where thedisability support services are regularly provided (including outdoor activities andcommunity based activities that are directly related to the funded family care)".35The Operational Policy[51] The Operational Policy, first published in September 2013 and updated inMarch 2016, begins with the Ministry's recognition of "the important role of familiesand whānau in providing care and support to their disabled family/whānau".36The Ministry therefore "provides funding to contracted disability services to supportfamilies in this role".37 The Operational Policy then sets out how disability supportservices are to be assessed by incorporating the documents which predate theextension of funding to family carers: "Funded Family Care incorporates theMinistry's needs assessments policy and practices into the Ministry's Part 4A35 Clause 72.36 Ministry of Health Funded Family Care Operational Policy (2nd ed, New Zealand Government,Wellington, March 2016) at [1].37 At [1].policy."38 At the stage of service coordination it may be identified that "some or all ofthe disabled person's needs are best supported through an allocation of HCSS".39[52] In our judgment two factors are directly material. One is the express inclusionof HCSS categories within the Operational Policy formally adopted under s 70D(1)(a).The other is the definition of the Policy under s 70B(1), which includes any practicefollowed by the Crown before pt 4A commenced. The NASC and HCSS policies areplainly components of the complete Policy. In our view, Palmer J erred in confininghis construction of the legal instrument to the Notice and the Operational Policy.[53] The Operational Policy explains that:40HCSS supports a disabled person to live in their home and take part infamily/whānau and community life. The HCSS service may includepersonal care such as assistance with showering and consuming of food orassistance with night support in some cases. It can also includehousehold management such as cooking and cleaning as well as somesupports for the person to access community activities in certaincircumstances.(Our emphasis.)[54] Both counsel agree we should take into account documents which specifyHCSS. However, they should be construed in the light of the Operational Policy suchthat the full range of HCSS is incorporated into the Policy to the potential benefit ofan eligible person with disabilities and their family carer.Service specifications[55] HCSS are provided in the home environment, whereas CRSS are providedfulltime in a fully funded state facility. The distinction is important. Before pt 4A'senactment, HCSS were provided solely by third parties who were unrelated to theperson with disabilities. HCSS were specified in a range of documents which predatethe extension to family carers and were never revised adequately to take account ofchanges effected by pt 4A. Mr Dale initially relied on the 2008 HCSS specification.However, the hearing before us focused on two tiers of specification updated in 2015.38 At [2.2]–[2.3].39 At [2.4].40 At [2.4].[56] The Tier One Service Specification applies to both CRSS and HCSS, settingout high-level objectives for the provision of all disability support services:412. Disability Support Services[The aim of disability support services] is to build on the vision contained inthe New Zealand Disability Strategy of a fully inclusive society. New Zealandwill be inclusive when people with impairments can say they live in 'A societythat highly values our lives and continually enhances our full participation.'With this vision in mind, [disability support services] aims to enhance disabledpeople's quality of life and enable their community participation andmaximum independence. This is achieved by creating linkages that allowpeople's needs to be addressed holistically, in an environment mostappropriate to them. The vision of [disability support services] is to ensure"Disabled people and their families are supported to live the lives theychoose".[Disability support services] seeks to ensure that people with impairmentsexperience autonomy on an equal basis to others. Support options arerequired to be flexible, responsive and needs based. They must focus on theperson and, where relevant, their family, whānau and aiga, and enable peopleto make informed decisions about their lives.(Our emphasis.)[57] The funding and provision of disability support services should also ensure thatthe families, whānau and carers of disabled people:42• Feel valued and are appreciated for the skills, roles and contributionsmade• Have a balanced sense of wellbeing / whānau ora; which encompassescultural, physical, mental and spiritual elements• Feel well and are supported to stay well• Are active and engaged learners and have access to training andeducation to meet people's needs• Have the information and resources to fulfil their roles of choice• Are respected for their diversity and choices• Are culturally safe and support• Are financially stable• Enjoy life and live life to the fullest• Fulfil collective and individual goals and aspirations• Have trust-based and mutually respected relationships with theirloved ones• Are included in communities of choice• Are identified as being part of hapu and iwi41 Ministry of Health Disability Support Services: Tier One Service Specification (August 2015).42 Clause 4.4.[58] The Tier Two Service Specification is the seminal document, going beyondgeneric objectives to specify the types of services capable of delivery as HCSS:436.6 Types 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, organiseand control their household/home environment, enabling them tocontinue living within their own environment.6.6.2 Personal CareAssistance with activities of daily living that enables a Person with adisability to maintain their functional ability at an optimal level.6.6.3 Sleepover Care or Night SupportA Service where the Support Worker or Other Staff Member isrequired to sleep at the home of the Person in order to provideintermittent care throughout the night.(Our emphasis.)[59] The Tier Two Service Specification does not refer anywhere to funded familycare. However, Palmer J focused his inquiry on that document as follows:[51] The issue comes down to whether the meanings of "personal care"and "household management" contained in the HCSS Tier Two ServiceSpecification are confined to specific discrete tasks or whether they extend tooversight of a person with a disability. Unfortunately, the current text of cl 6.6used to describe these terms refers to general and even vague purposes anddoes not provide explicit definitions. The best aids to interpretation are theexamples inaccessibly provided in different parts of the policies and themethodology of assessment.[60] The Judge then reviewed the non-exhaustive examples of discrete tasks givenin older HCSS specifications dating back to 200244 — such as personal hygiene, eatingand dressing — which he had recited earlier in his reasons.45 On this basis, he upheldthe Minister's conclusion that Mrs Moody's general supervision and intermittent careof Shane — described by Palmer J as "being there to make sure [Shane] and the43 Ministry of Health Disability Support Services: Tier Two Service Specification: Home andCommunity Support Services (September 2015).44 HC judgment, above n 2, at [52]–[56].45 At [35].household are safe"46 — does not qualify for funded family care within the definedcategories of eligibility.47 That is why the Judge declined to grant the application forjudicial review.The Ministry's approach[61] Toni Atkinson is a senior Ministry official with overall responsibility forprovision and funding of disability support services. She filed a comprehensiveaffidavit explaining in detail the Ministry's practical operation of the Policy and itsvarious components, much of which we have recited above.[62] Ms Atkinson confirmed that when allocating HCSS hours the Ministry makesallocations for household management and personal care on the premise that they"must reflect direct, hands-on disability-related support needs and accordingly HCSSis not a 24 hour support service". The Ministry's longstanding practice is that aperson's mere presence in the home of a person with disabilities cannot be allocatedas a household management or personal care service. Ms Atkinson referred to thisservice generically as "supervision". She acknowledged that it is necessary to specifysleepover support as a separate aspect of HCSS because that is the only circumstancein which somebody may be paid for being present. She described this presence as notbeing to supervise the person "but in case personal care needs intermittently arise".She acknowledged that sometimes a person with disabilities will have high care needs,requiring another person to be present at many times.[63] Ms Atkinson said this:The only live-alone residential care arrangements support disabled peoplewith such severe behavioural issues that they would be a risk to themselves orother service users. Residential care cannot be delivered outside such afacility, for example in a disabled person's own home or their family home.If a person has particularly high personal care needs of the kind describedabove, HCSS will only be allocated to meet those needs up until the point that[CRSS] becomes a more cost-effective option.However, Ms Atkinson later said the family funded care "is intended to facilitate adisabled person's choice to live with and receive HCSS from a family member".46 At [53] and [55].47 At [57].[64] To give appropriate context to the Ministry's submissions on budgetaryconstraints, we record Mr Rishworth's advice about the Crown's current costs ofproviding disability support services for the 2016 financial year. Payments of$96 million were made to 55 HCSS contractors under Crown funding arrangements.Another $53.4 million was paid under the Crown funding arrangements forindividualised funding, the mechanism enabling people with disabilities to employtheir own staff to provide HCSS. And a further $8.8 million was paid for family carefunding under HCSS, with which this appeal is concerned.Decision[65] The High Court's jurisdiction to hear and determine this application for judicialreview is undisputed. By s 70C(a) the Policy limits the Minister's ability unders 10(2)(a) to enter into Crown funding agreements. The act of entering into a fundingagreement is the statutory power of decision effectively exercised by delegation whenNASC providers assess a person's eligibility for HCSS to be provided as fundedfamily care. The Policy is an instrument with direct force of law in fixing theparameters of the Minister's statutory power. Thus a failure by Taikura and itsreviewers to interpret the Policy correctly in the course of assessing needs andcoordinating services will be an error of law which is attributable to the Minister.In that event the decision should be set aside and made again in the light of thepurposes of the Act and the content of the instruments which together comprise thetotality of the Policy.[66] A degree of perspective is necessary in defining our inquiry. As noted,Mrs Moody's original position was that Shane was entitled to 40 hours of her paid careweekly. In argument before us Mr Dale recognised that Shane's entitlement was notof that absolute nature and must be assessed by reference to the Policy.[67] In what may have been an overreaction to Mrs Moody's original stance,the Crown's written submissions, but not Mr Rishworth's oral argument, describedthe proceeding as an attack on "the philosophy and mechanics of New Zealand's entiredisability support system". The Crown asserted that acceptance of Mrs Moody'sargument about supervision would completely change the basis upon which HCSS isprovided and funded across all its recipients. We reject the Crown's proposition. Atmost, the acceptance of Mrs Moody's argument would have a marginal funding impacton the modest annual cost of funding family care. And we repeat that the issue nowbefore us is of a confined nature: it is about the proper construction of statutory andderivative instruments.[68] Our approach leads us to a different conclusion from that favoured by Palmer J.We depart from his construction of the relevant provisions of the Tier Two ServiceSpecification in the light of the relevant statutory and Convention provisions.The Judge faced the difficulty, as do we, that the older HCSS specifications take noexpress account of the pt 4A extension of funding to family members living in thehome with and caring for a person with disabilities. However, we disagree with hisview that examples of discrete tasks found "inaccessibly"48 elsewhere in olderdocuments dating back to 2002 are the preferred guide to interpretation of the Policy,especially when the examples specified in the older documents were expresslynon-exhaustive. The specifications have moved beyond discrete examples and insteadexplain why the state provides funding under the categories of personal care,household management, and sleepover care or night support.[69] We agree with Mr Dale that the Judge was wrong in particular to reject cl 6.6of the Tier Two Service Specification simply because its language is general andwithout explicit examples in its definitions. In our judgment its three purposes are theguides to determining the scope of services which are eligible for funding. That is (a)to enable persons with disabilities to continue living within their own environment;(b) to maintain their functional ability at an optimal level; and (c) where the familymember is required to sleep at the person's home to provide intermittent carethroughout the night.[70] Mr Dale correctly notes that the purposes set out in cl 6.6 recur throughout therelevant documents, consistent with the key statutory purposes of (a) promoting theinclusion and participation in society and the independence of people with disabilitiesand (b) achieving the best care or support for those in need of services.4948 At [51].49 New Zealand Public Health and Disability Act, s 3(1)(a)(ii)–(iii).Where possible, these purposes are best served in the home environment withfamily care. Clause 12 of the Tier Two Service Specification, for instance, reinforcesthe purposive definitions by providing that household management and personal careare "services that enable a person to continue living within their own environment".In our judgment the relevant phrases are not to be construed narrowly and limited tospecific examples of discrete tasks or tied to earlier specifications which predate theenactment of pt 4A. Instead they must be interpreted in a way which advances thepurposes of funding HCSS within the Act at large.[71] Mr Rishworth submits that it was never Parliament's intention when enactingpt 4A — nor the Ministry's intention in formulating its particular policy — to payfamily members to sleep in their own home. But that is not the point.Family relationships cannot justify the exclusion of carers from the defined categoryof "Support Worker or Other Staff Member" under the Tier Two Service Specificationwhen the law now recognises that they are equally eligible for funding in performingthe same disability support services as contracted third-party carers. There would beno purpose in distinguishing between members of these two groups once their equaleligibility is acknowledged. As Mr Rishworth himself submits, the Policy has notchanged the nature of funded services. Their underlying content remains the sameand, as we have found, must be incorporated into the Policy.[72] We are satisfied that funding for a family member if it qualifies under the TierTwo Service Specification can be incorporated into the category of "personal care"without requiring payment for the fact of sleeping over. The true purpose of statefunding is the provision of intermittent care which maintains a disabled person'sfunctional ability at the best possible level within the home environment. TheMinistry's focus on avoiding payment for mere supervision time has apparently causedits failure to recognise that at certain times, particularly at night, essential servicesmust be provided and are provided by carers on an intermittent basis. This need canarise unavoidably when the person receiving care has a certain type of disability. Somereasonable allowance can be readily made on an hourly basis for each night inrecognition of the services performed by the carer. We are satisfied that this step willnot require a major realignment of HCSS. It will, however, require theNASC providers to alter their narrow approach to needs assessment by makinga modest adjustment to the appropriate service coordination and funding arrangement.[73] Our construction is supported by a number of factors. First, the OperationalPolicy states that "the HCSS service may include personal care such as showering andconsuming food or assistance with night support in some cases". These are the veryservices performed by Mrs Moody in the event of Shane's night-time accidents.Mr Rishworth seeks to minimise the importance of this phrase. In his submission, itshould not be construed as meaning that the service of night support can be fundedunder the Policy. Instead, he submits, the cited passage simply sets out the full rangeof HCSS, some of which can be provided by a family carer but not all.[74] However, Mr Rishworth's construction strains the plain language of theOperational Policy. We read the document as incorporating the full range of HCSSinto the Policy. The rest of the document deals with limits on allocation andexceptions, further procedural points about payment, and the roles and responsibilitiesalready affirmed in the Notice. It does not explain further the scope of funded serviceswhich might be provided by a family carer, or exclude a family carer's provision ofincidental night-time care from the range of HCSS which can qualify for funding.[75] Second, there is the Disability Strategy. Palmer J mentioned the existence ofthis instrument but did not take it into account in his analysis.50 While it is not a directcomponent of the Policy, we consider that the terms of the Strategy are relevant.A constant theme of Mr Rishworth's written submission, although not accentuated inargument, is that fulltime funding for supervision is the exclusive domain of CRSSwhich offers efficiency and economies of scale in reducing the cost of care and supportspanning a group of people with disabilities. To similar effect is the Crown'sproposition that, if a person chooses to remain in his or her own home with high levelsof support rather than entering the residential service, the Ministry will generally onlyfund HCSS up to the equivalent amount which would be spent if the person were toenter a multi-client residential facility. The proposition is that the Ministry does notfill a gap to fund lifestyle choices where other state services have been rejected.50 At [19].Elsewhere it is said that "a full time care service [is] available to people like [Shane]but it is not HCSS".[76] Mr Rishworth is correct that Mrs Moody cannot expect Ministry funding forShane's fulltime care. However, the Ministry must take into account New Zealand'sobligations deriving from the Convention and reinforced by the Strategy to ensure"the importance of belonging to and participating in our community to reduce socialisolation", to be achieved through the provision of "high quality, available andaccessible" services. The Ministry is required to construe the Policy broadly so as tofund Mrs Moody's care of her son within the home environment where that is possibleand in his best interests. We are satisfied that achieving that objective is more alignedwith New Zealand's Convention obligations than forcing Shane into a CRSS facilitysimply because that is a more cost-efficient expedient. We are not satisfied that theproviso set out in s 70A — to keep funding "within sustainable limits" — can overridethe weight of legal materials pointing toward a generous assessment of funding,especially when the Ministry already has accounted for that proviso in imposing afunding cap of 40 hours per family carer.[77] Third, there is the express exclusion of services which do not qualify forfunding. The Minister is empowered by pt 4A to exclude certain services. Clause 10of the Tier Two Service Specifications provides that "[t]here are some closely relatedServices that are not covered under this Service specification" including servicesfunded by (a) a separate specification — presumably CRSS within a fulltime facility— and (b) other government agencies such as the Accident Compensation Corporation(ACC). The Ministry's HCSS Implementation Guide, dated August 2008, also notesthe services that are offered — "to provide individualised support for a person withphysical, intellectual and/or sensory disabilities that will enable them to participate ineveryday activities" — before referring to the following exclusions:9. What the Service does not deliverThere are some closely related Services that are not covered under this servicespecification. Any service funded, or mandated to be funded by a separateservice specification or agreement from ACC, MOH [Ministry of Health], orany other government agency is not provided for under the new servicespecification. Additionally, Services which can be provided through the use ofnatural supports, such as friends and family, are not provided for under thenew service specification.Gardening and lawn mowing are not included in the Services purchased byeither ACC or [disability support services], as these Services may be accessedthrough other funding avenues e.g. Work and Income.[78] The only other express exclusions are contained at the end of the Notificationof Service Coordination prepared for Shane's needs on 9 March 2016, setting out thefinal arrangements now the focus of this judicial review:Also please note the following areas are not eligible for support under theMOH HCSS/FFC guidelinesHealthCommunicationBehaviourFamily contactEmotional supportGoing out with shoppingPersonal shoppingBudgeting/financesOther agencies[79] Taikura and other NASC agencies operate on the apparent assumption thatthese areas do not qualify as HCSS to be provided by family funders. We were notreferred to the source of these listed areas, but our main point is that generalsupervision to ensure safety in the home environment or the provision of incidentalcare throughout the day and night does not fall within these exclusions.[80] Other relevant documents support the more expansive construction which wefavour. The NASC Guideline — an annotated version of the Operational Policy toassist NASC agencies updated in August 2015 — provides a "principles based"approach when considering "the approval of high cost support packages for disabledpeople who want to remain in their own homes in the community". The documentrecords the following:BackgroundHistorically NASC have always been of the understanding that the Ministrydoes not fund a 24/7 residential service in the person's home nor is nightsupport (usually sleepover) ongoing or 7 nights per week. The current policyis up to 28 nights per annum for sleepovers. Client expectations are now challenging this position. Increasingly NASCsare tasked with making decisions around how much support can be applied toa "home based" support package, and when/if a residential package should besourced instead. This increasing trend to have people access high levels ofsupport in their homes is related to the well-established international trend,supported by the NZ Disability Strategy, New Model for Supporting DisabledPeople and Enabling Good Lives, of supporting people in their homes as muchas possible, and enabling them to live "ordinary lives".There is increasing need to apply a logical and sympathetic approach toenabling people to remain in their own home, in the face of increasing costs.While DSS seeks to achieve an "ordinary" life, with choice and control fordisabled people, the need to manage within fiscal constraints prevails.(Our emphasis.)[81] This background information observes that there is a trend toward supportingbroader funding in the home environment, and that agencies should make assessmentsand coordinate services in a logical and sympathetic manner subject to fiscalconstraints. However, in setting out "principles to consider", the Guideline does notexpressly exclude kinds of services from allocation. It simply provides the following:Guidance – Principles to consider• All processes should be aligned with established protocols and SPAbands.• Service coordinations need to be based on ESSENTIAL NEEDS only.• MOH does not fund lifestyle choice (ie where natural support wouldotherwise fill the need) — for example when the family refuse othergovernment funded supports (ie rehab/respite or [Ministry of SocialDevelopment] funded day services).• NASC must use the ICARe process [Individual Client Allocation ofResources]51 to determine the need for direct physical support (handson support needs) at all times ensuring that natural supports (notconsidering lifestyle choices such as full time work) are included inthe support plan. Funding will be based on assessed support hoursand will be based on core staff costs.[82] A distinction appears to emerge from these principles. On the one hand thereare services directed to meeting essential needs, which are funded; on the other thereis provision of natural supports, which are not funded. The question of whethergeneral supervision and intermittent care falls within the former category of eligibilityis answered by asking whether that service is essential to maintaining the person withdisabilities' mental and physical health in the home environment. If the startingpremise is that the person's best interests are served by continuing to live in the homeenvironment, and if a service is necessary to support that situation, it must qualify asessential given the overarching purposes of the legislative regime. It would includenight-time attendances where such services are provided.Summary[83] In our judgment the Ministry's failure to take into account this intermittent typeof personal care performed by Mrs Moody, whether during the day or at night, amountsto an error in assessing the scope of disability support services for which a familymember is eligible for payment.52 The fact that the service cannot be quantifieddiscretely or routinely by use of the Ministry's unit-based measurement model doesnot justify its exclusion. A formulaic approach to assessment is inconsistent with thespirit and purpose of the Policy. What is required is a fair estimate of the essentialcare which Mrs Moody provides and which the Policy is intended to support.51 There was almost no detail before us about the Individual Client Allocation of Resources process,and it was not mentioned by Palmer J in his reasons. This is perhaps explained in a letter from theCrown Law Office to Mr Dale dated 1 December 2015: "The premise of ICARe is that the personbeing allocated services is entering a residential group home because of intellectual disability.If the home they are entering is known, the actual support needs of the existing clients are takeninto account. If no existing home has been identified, the person is assumed to be entering aresidential home with three other clients of similar need. ICARe can also be used as a guide forallocation of other services, including HCSS, although not all of the aspects of [CRSS] are relevantwhen allocating other services."52 See at [65] above.[84] It is uncontested that Mrs Moody performs intermittent but recurring servicesfor her son which require her constant presence. Shane falls within the category ofpeople with disabilities described by Ms Atkinson as requiring an intense level ofoversight. In that sense, Mrs Moody's service meets Ms Atkinson's requirement ofsleepover care as a separate aspect of HCSS where personal care needs intermittentlyarise; Ms Atkinson herself distinguishes that service from mere supervision.[85] We are satisfied that the NASC providers' assessment of Shane's fundingeligibility failed to recognise fully the range of services which can be performed byfamily members. That failure must stem from a misinterpretation of the Policy by theMinister and his agents. Therefore the Minister has erred in law. He has incorrectlyinterpreted the relevant policy documents and made a decision contrary to theinstruments which bind him. For the reasons we have set out the error is serious andwarrants judicial review.Result[86] The appeal is allowed.[87] The decision granting the first appellant a maximum of 17 hours of fundedfamily care weekly for disability support services provided by the second appellant isset aside.[88] The Minister is directed to reassess the first appellant's application for fundingin a manner consistent with the purposes of the Act and content of the Policy as setout in this judgment. In particular, the Minister must make appropriate allowance forMrs Moody's provision of personal care services to meet Shane's immediateintermittent needs as they arise at any hour of the day.[89] The respondent is ordered to pay one set of costs to the appellants on a band Abasis as for a standard appeal together with usual disbursements.Postscript[90] We make two additional points. First, we note that this is the third occasion onwhich a dispute between the Ministry of Health and parents who care for disabledadult children has reached this Court. We hope that in the future parties to disputesover the nature and extent of funding eligibility are able to settle their differenceswithout litigation. Second, we have referred to our unease, which is shared by PalmerJ, about the complexity of the statutory instruments governing funding eligibility fordisability support services. They verge on the impenetrable, especially for a layperson, and have not been revised or updated to take into account the significantchange brought about by pt 4A. We hope that the Ministry is able to find an effectivemeans of streamlining the regime, thereby rendering it accessible for the people whoneed it most and those who care for them.Solicitors:Neilsons Lawyers Ltd, Auckland for AppellantsCrown Law Office, Wellington for Respondent