When the Court Recognises Care as Work, Should Parliament Be Able to Step In?
The recent developments following Fleming v Attorney-General raise an important question for all New Zealanders:
When a family member provides full-time care for a disabled loved one, is that care simply a family responsibility or is it work that deserves legal recognition, protection, and fair payment?
This is not just a technical employment law issue. It goes to the heart of how we value care, disability support, family responsibility, and the role of the State.
In Fleming, the Supreme Court considered whether family carers providing substantial care to disabled adult family members could be treated as employees. The case challenged the long-standing assumption that care provided within a family is somehow different from care provided by someone outside the family.
That assumption deserves discussion.
If a non-family support worker provides personal care, supervision, overnight support, medication assistance, transport, advocacy, and day-to-day help, we call it work.
But when a parent, sibling, or family member provides the same care, often around the clock, the language changes. It becomes “family responsibility”, “natural support”, or “what families do”.
So the question is: should the law draw such a sharp distinction?
The Government has now introduced the Disability Support Services Bill, which responds to the Supreme Court decision. The Bill appears aimed at clarifying when the Crown or providers will and will not be treated as employers of family carers.
That raises another important question:
Is Parliament simply providing legal certainty or is it stepping in to limit the wider effect of a Supreme Court decision that recognised the reality of family care?
There are difficult issues on both sides.
On one hand, the Government must manage public funding and ensure that the disability support system is sustainable.
On the other hand, many families caring for disabled loved ones are already carrying an enormous physical, emotional, and financial load. Many have given up employment opportunities, income, sleep, independence, and personal time because the care required is constant.
For those families, this is not occasional help. It is not simply being available “if needed”.
It is daily, essential, life-sustaining support.
Neilsons Lawyers were appointed as litigation guardian to represent the interests of the disabled person in the Fleming proceedings. That role was important because, in cases like this, the disabled person must not become lost in the wider debate about budgets, employment status, policy settings, or Crown responsibility.
At the centre of the issue is a disabled person whose dignity, safety, support, and quality of life matter.
Perhaps the real question is not only:
Who pays the carer?
But also:
What system best supports disabled people to live with dignity, security, and genuine choice?
This debate forces us to ask uncomfortable but necessary questions:
Should family carers be treated differently from non-family carers when they provide the same essential support?
Should family care be legally recognised as work in some circumstances?
Should Parliament be able to legislate in a way that limits the wider impact of a Supreme Court decision?
How do we balance fiscal responsibility with fairness, dignity, and the rights of disabled people?
Are we relying too heavily on unpaid or underpaid family labour because it happens behind closed doors?
We would be interested to hear others’ views.
Where should the line be drawn between family responsibility and legally recognised work?
