Family members who provide funded care for disabled persons in their own homes are employees of the Ministry of Health and have the protections afforded to employees by the Employment Relations Act 2000 (ERA) and related laws when they are caring for the disabled person.

On 9 December 2025, the Supreme Court unanimously allowed the appeals of Christine Fleming and Peter Humphreys. They are parents providing full-time care to their adult disabled children in their own homes, funded through the Ministry of Health’s Individualised Finding Scheme.

The cases are important because of:

• the Supreme Court’s consideration of the meanings of ‘homeworker’ and ‘work’
• the intersection of obligations of the State, family and employers.

Ms Fleming’s case has been remitted to the Employment Court to determine remedies.

Family carers have received state funding to care for disabled family members in their own homes since 2013, following the Court of Appeal judgment in Ministry of Health v Atkinson¹.

Under the Individualised Funding Scheme (IFS) implemented in 2020, a disabled person receives funding from the Ministry of Health to purchase support services based on their needs, including for care services at home. Family members providing care at home could be employed by an external support services provider or the disabled person could choose to manage their own funding and engage family members directly.

Ms Fleming² and Mr Humphreys were engaged directly by their children as family carers.

A family carer is an employee if they meet the definition of ‘homeworker’ under the ERA.

Under s 6 of the ERA the Court must have regard to the real nature of the relationship between two parties to decide whether a person is “employed … under a contract of service”.  S 6(1)(b()i) includes homeworkers within the definition of employee. ‘Homeworker’ is defined as a person who is engaged, employed or contracted by any other person to do work for that other person in a dwellinghouse, and includes a person who is in substance engaged, employed or contracted to do this work.³

The Supreme Court held that the court cannot ignore the real nature of the relationship or adopt a form over substance approach when determining if a person is a homeworker under the ERA. That would undermine the purpose of the provision, which is to provide protection for persons who would otherwise not have the legal protections that come with employee status.⁴ The term ‘homeworker’ must be construed broadly, in context ,and the court may look beyond a strict contractual analysis.

It held Ms Fleming was engaged by the Ministry as a homeworker under the IFS, despite there not being a formal written contract or active selection by the Ministry in the conventional sense. The period that Ms Fleming received a benefit because she had rejected the Ministry’s funding offer did not alter her position. The Ministry had set the arrangements for her son’s care. It knew Ms Fleming was caring for her son and it was monitoring her provision of care through its support services agent. She was undertaking work that the Ministry would otherwise have had to undertake itself, and it benefited from her labour.

Mr Humphrey had also appealed against the Court of Appeal’s decision that he had lost his status as a homeworker when the funding arrangements transitioned from the Funded Family Care scheme to the IFS, because he had elected to act as his daughter’s agent to manage her IFS funding. He said he remained a homeworker because his daughter lacked capacity to fulfil the responsibilities of an employer. The Supreme Court agreed. It was Mr Humphreys, not his daughter, who had the relationship with the Ministry for his engagement as her carer. It was unrealistic to treat him as her agent.

At issue in the appeals was which activities and tasks carried out by a family carer in their own home is work. The Court of Appeal considered that many of these activities could equally be seen as steps taken in their capacity as a guardian or homeowner, not work for which they were entitled to be paid.

However, the Supreme Court rejected a narrow interpretation of ‘work’ that limited it to discrete, fixed-hour tasks or conventional “day-job” activities. It reiterated work is not limited to physical exertion. Activities such as sleepovers, supervision, constant availability and other care-related activities count. The Court applied the three factors identified by the Court of Appeal in Idea Services v Dickson⁵ to determine whether Ms Fleming and Mr Humphreys were doing work:

• The constraints placed on the freedom the employee would otherwise have to do as they please;
• The nature and extent of responsibilities placed on the employee
• The benefit to the employer of having the employee perform the role

The Supreme Court found that Mr Humphreys and Ms Fleming were constrained in their ability to do things such as leave their homes and sleep uninterrupted by their need to care for their children, which they were doing in their capacity as employees. They were responsible for the care and safety of their children. The Ministry benefited from their care of their children and would otherwise have at least some responsibilities for providing that care.⁶ They were therefore doing work.

The Supreme Court accepted that not all activities carried out by a family carer in their own home will be work. However, that went to calculation of hours of work, rather than indicating that they were not doing work at all.⁷ They were working when they were caring for their children.

Family carers in similar positions to Ms Fleming and Mr Humphrey will now receive the protections available to employees under the Employment Relations Act 2000 and related legislation, including minimum wage and holiday entitlements, as well as protections under the Health and Safety at Work Act 2016.

Whilst the Ministry of Health will have primary liability as the employer, organisations in the disability support services sector who work with family carers will also need to review their arrangements and consider if these are affected by family carers’ status as employees.

For other employers, the Supreme Court’s broad, purposive approach to the meanings of ‘homeworker’ and ‘work’ indicate the continued expansion of New Zealand’s employment law protections beyond traditional views of what constitutes an employee-employer relationship.

1. [2012] NZCA 184
2. For part of the relevant period only.
3. S5 ERA
4. [86]
5. [2011] NZSC 55
6. At [153]
7. At [150]-151]

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.