The Supreme Court (Court) has confirmed that family carers can, in some circumstances, be employees of the Government, even where there is no formal employment agreement in place.
In Fleming v Attorney-General and Humphreys v Attorney-General [2025] NZSC 188, the Court considered whether two parents who provided full-time care for their disabled adult children were employees of the Ministry of Health. While both appeals were successful, the Court’s reasoning in relation to Ms Christine Fleming is of particular significance and provides guidance on how employment relationships can arise in the absence of express agreement.
Background
Ms Fleming cared for her son, Justin, who required constant supervision and care. For many years, she remained at home providing that care while receiving a Supported Living benefit. In 2018, she applied for funding under the Ministry of Health’s Funded Family Care scheme, which allowed family members to be paid for providing disability support services.
The scheme provided funding for up to 40 hours per week. Ms Fleming consistently stated she would accept funding on that basis. However, the Ministry offered her significantly fewer hours, initially around 15 per week and later 22. She declined those offers as inadequate and continued providing care without payment.
Mr Humphreys’ circumstances differed. He had received funding under the Funded Family Care scheme for several years and later transitioned to the Individualised Funding scheme. His case raised distinct issues about whether that transition altered his employment status.
What the lower courts decided
The Employment Court found that both Ms Fleming and Mr Humphreys were employees of the Ministry as homeworkers under the Employment Relations Act 2000 (ERA).
The Court of Appeal overturned that decision in relation to Ms Fleming, concluding that she was not an employee because there was no identifiable event marking the start of an employment relationship. However, it upheld the finding that Mr Humphreys was an employee while he was funded under the Funded Family Care scheme.
Both carers appealed to the Court.
The Court’s Decision
The Court unanimously allowed both appeals. It restored the Employment Court’s finding that Ms Fleming was an employee and confirmed that Mr Humphreys remained an employee even after transitioning to Individualised Funding. While both outcomes are important, the Court’s analysis of Ms Fleming’s situation is particularly significant because it confirms that employment relationships can arise without a formal agreement or clear starting point.
Ms Fleming never entered into a formal funding or employment arrangement with the Ministry. Her case therefore squarely raised the question of whether an employment relationship can exist based on the reality of the arrangements alone.
The Court rejected the Court of Appeal’s view that there must be a single defining event, such as a job application or appointment. Instead, it held that the correct approach is to assess the real nature of the relationship, viewed objectively and in context. An employment relationship can arise through a combination of events, provided the employer is aware of the circumstances and appreciates its responsibility.
In Ms Fleming’s case, the Ministry knew she was providing continuous care. Without that care, the Ministry would have had obligations to arrange alternative support. The Ministry had assessed, monitored, and audited the care provided, and had made funding offers that the Court found were wrongly calculated and unreasonable given Justin’s needs.
By offering insufficient hours, the Ministry effectively compelled Ms Fleming to continue providing care on an unpaid basis. Her ongoing assertions of entitlement to proper funding were enough for the Ministry to appreciate its responsibility. Taken together, these factors meant she was engaged as a homeworker and therefore an employee of the Ministry.
Was the care “work”?
The Court also confirmed that the supervision Ms Fleming provided could constitute work. In determining this, the Court considered the constraints on her freedom, the nature and extent of her responsibilities, and the benefit of her work to the Ministry. Ms Fleming’s ability to leave the house or sleep uninterrupted was significantly restricted, her responsibilities were substantial, and the Ministry benefited because it would otherwise have been required to provide that care itself.
While the precise calculation of Ms Fleming’s entitlements was sent back to the Employment Court, the Court observed that it would be difficult, on these facts, to suggest she was working anything less than a 40-hour week.
Why this matters
This decision confirms that employment relationships are not determined by labels or paperwork. Where an organisation is aware of work being performed, benefits from that work, and effectively relies on it being done, employment obligations may arise.
For family carers, the case clarifies that the line between unpaid family support and paid work depends on the reality of the responsibilities undertaken and the extent to which the State has assumed, and delegated, responsibility for care.
Author: Evelynn Turin
