Government to overturn court decision recognising family carers as employees

Monday, 18 May 2026

The Disability Minister has revealed a bill that would reverse a recent Supreme Court decision to recognise some family carers as employees.

In a statement released late on Monday, Louise Upston announced the introduction of a law that would give Disability Support Services (DSS) a legal basis.

DSS sits within the Ministry for Social Development and is responsible for funding the care of about 55,000 disabled people each year.

“DSS plays a vital role in people’s lives, but it’s been operating without a clear legislative foundation,” Upston said. “This has made it harder for people to understand what support is available, who qualifies, and how decisions are made.”

The new law would establish an “authorising framework” around the system, she said.

As part of that framework, the bill also seeks to overturn a decision issued by the Supreme Court in December.

Christine Fleming and Peter Humphreys, two parents who care full-time for their disabled adult children, had applied for recognition as employees of the government. They were seeking better pay and benefits for what they described as “skilled, demanding work” that required a 24/7 commitment.

“The care I provide for my daughter is not only an act of love, [it] goes beyond love alone. It involves dedication, knowledge and responsibility that meets the same standards expected in professional care settings,” Humphreys said at the time.

In the court’s decision, both were deemed “homeworkers” and employees of the Ministry of Social Development.

In relation to Fleming, the court noted she “was undertaking work the ministry would otherwise have had at least some obligations to undertake if she refused or was unable to do this work”.

While both Fleming and Humphreys had previously been entitled to some funding from DSS, they were not paid for the real hours they worked or afforded legal protections like minimum wage and holiday pay.

The court also found that Fleming’s work to care for her son fell within the definition of “work” under the Minimum Wage Act 1983. That left the door open for other family carers to make similar claims.

Upston, in her statement on Monday, said there were “better ways to recognise and support carers than treating family members as state employees”.

“I have commissioned further work in this space and will be consulting on a package for carers. I expect to make further announcements soon,” she said.

In the meantime, the bill seeks to legislate that family carers are not employees of the Crown.

It would not overturn the Supreme Court’s finding that Fleming and Humphreys were employees, but it would prevent any future claims by other carers and extinguish any that have already been filed.

It would also clarify that the responsibility for care of disabled people rests with their whānau in the first instance, and it would bar family carers from making future claims using the Minimum Wage Act 1983.

Disability advocate Jane Carrigan told Stuff she thought that would affect “45-odd” families who have filed cases with the Employment Relations Authority - including her.

“I can tell you right now for nothing it won’t be cancelled,” she said of her own claim. “I would use the expression over my dead body - but I’m afraid [the Government] would only take that as an invitation.”

Advocate promises a fight

Carrigan, who has been fighting to get family carers recognised as employees for over a decade, said she has no plans to tolerate the proposed law change.

“The Government can well and truly expect to have a huge fight on their hands,” she said, explaining that some families waited for years to see the the outcome of Fleming and Humphrey’s cases.

“These [whānau] have not shut up and sat in silence for years only for the Government to say too bad, too sad.”

She said the first she heard of the bill was when she received a call from someone at the Ministry at the same time the Minister’s statement was sent out.

“We hear constantly from politicians that no one is above the rule of law. That is bullshit. The Crown is acting above the law, they have completely overruled the Supreme Court,” she said.

Bill in line with officials’ advice

According to the Regulatory Impact Statement released alongside the bill, this change is in line with officials’ advice.

By way of background: most family carers are paid within the bounds of the current DSS. This was introduced in 2013 after the Court of Appeal found it was discriminatory to not pay family carers, when non-family carers were paid for doing the same work.

The model has shifted over the years, but family carers are now paid via an “Individualised Funding” scheme. This is funding that goes to a disabled person or their whānau, so they can determine how they are cared for and by whom.

But as Fleming and Humphrey’s cases demonstrated, it does not guarantee minimum wage and may not cover the full hours of work.

So, when the Supreme Court recognised an employment relationship and declared what Fleming was doing was “work”, officials warned that the decision could pose real fiscal risks.

“Employment is not a suitable model for paying family carers. If no action is taken, then there is the potential for significant immediate and future fiscal impact on the Crown,” they wrote.

Because increasing funding for DSS “may not meet the Government’s priority of fiscal responsibility”, the Ministry may have to restrict access to DSS to pay for it, they said.

“There is an implication from the judgment that primary responsibility for the care and support of disabled people rests with the Crown. This is inconsistent with the longstanding government position that families and whānau are responsible in the first instance.”

The officials noted that the Ministry is exploring how family carers can be more appropriately supported, without recognising them as employees.