Christine Fleming awarded $350,000 court costs as family carer fight continues

The mother of a severely disabled man has been awarded hundreds of thousands of dollars in lawyers' costs.

The Employment Court's decision awards family carer Christine Fleming almost $350,000 in legal costs, which she's accrued in her long-running battle to be recognised as a homeworker while caring for her severely disabled adult son, Justin.

But the bigger battle to pay family carers continues, with the Crown widely tipped to appeal this recently released decision, and the government now looking to change the law for family carers.

The decision follows a hearing in May when the chief employment court judge, Christina Inglis, was asked to rule on three things: Fleming's application for indemnity costs against the Crown, the Crown's application to strike out Justin as a party and the Crown's application to strike out Fleming's personal grievance claim that she lodged with the court in 2019.

The judge ruled that the Ministry of Social Development pay Fleming $347, 109.98, the actual costs of the Employment Court proceedings.

In doing so, she noted the unique jurisdiction of the court is grounded in equity and good conscience.

"I invited counsel for the Crown to identify a reason why it might be fair for Ms Fleming to be out of pocket for her role in these proceedings. Counsel confirmed that she was unable to think of one; nor have I," the judge said.

In 2019, Fleming went to the Employment Court claiming she was an employee of the Ministry of Health. She also took a related personal grievance.

The court ruled that Fleming and another parent, Peter Humphreys, were engaged as homeworkers and were employees of the Ministry of Health.

The Court of Appeal later overturned the Employment Court's decision, concluding Fleming had not been an employee of the ministry.

That was subsequently appealed by the Supreme Court, which ruled in favour of Fleming and Humphreys. Both actions in the senior courts were funded by legal aid.

This award pays for the costs incurred by Fleming's lawyers, Paul Dale, KC, and Mark Jeffries, for their work on a case they presented six years ago.

'A hell of a gamble'

Fleming welcomed the judgment, saying the pair had effectively worked for free until now.

"They should be paid the full amount for what they did, because they took a hell of a gamble, both of them.

"They've put themselves out on a limb and done an extraordinary amount of work. They deserve to be reimbursed properly for their time," she said.

Disability advocate Jane Carrigan, who was also awarded $2000 in non-party costs by the court, said she was delighted the court has recognised the complete injustice of the case, with Dale and Jeffries effectively working pro bono, against an array of Crown lawyers.

"Being an applicant is an awful lot harder than being the respondent. All the respondent does is say, 'no, no, no."

Dale said this was a test case, and the court's decision was relatively orthodox.

However, he said the issue of paying family carers hasn't been dealt with satisfactorily by the state.

"It's a thoroughly worthy cause. I don't really understand why the Crown has been so difficult over all this. I mean this should have been resolved years ago after Chamberlain, when the Court of Appeal said, 'stop this stuff, it's too complicated, stop fighting'."

In her decision, Judge Inglis also agreed to strike out Fleming's son, Justin, as a second defendant, saying it has now been established that he was not, and has never been, his mother's employer.

But she refused the Crown's application to strike out Fleming's personal grievance claim, saying it could be progressed through the court.

That claim is based on the way Fleming says she was treated over the years and the Crown's refusal to pay her for the hours she works in caring for Justin.

The battle is far from over. In December, the Supreme Court ruled Fleming and Humphreys should be recognised as homeworkers and were entitled to receive the minimum wage.

But the court referred the question of the nature of work and what Fleming should be paid in terms of lost wages and holiday pay back to the Employment Court.

'Terrible piece of legislation should be put in a shredder' - lawyer

In the meantime, the government has introduced legislation that would clarify the purpose of Disability Support Services, including making it clear the Crown is not the employer of family carers.

Dale said he didn't have confidence in the bill, which is currently before Parliament.

"I've always said I think the problem is with the bureaucrats who have got a fixed view that parents should be providing care out of love and affection without the support of the state.

"And I think the ministers that have been involved have never had this issue squarely explained to them. What we've been met with is a series of devices to minimise the caregiver's entitlement.

"And now it's happening again. I think the bill is a terrible piece of legislation, it should be put in a shredder and started again."

Fleming says the decision and ongoing litigation is part of a never-ending process.

"The government obviously delayed my court case, so they can bring in this legislation, because my case was supposed to be heard in May and then it was delayed until August and September."

The select committee is expected to report back next month, with Fleming's case due back before the Employment Court in September.

Dale said the real issue now was what happened to the 24 other claims from family carers, which were awaiting the outcome of the Fleming case and have the expectation that if she succeeded, they would have an entitlement.

"What the Crown are trying to do now is change the law so that those 24 claims miss out, even though if they had pressed on ... they would have been in the same position Christine is," he said.

"It's pretty awful because some of them have got some pretty compelling claims in terms of need and so they are going to miss out."

This story originally appeared in the New Zealand Herald.