Great work Michael Fletcher. Thanks you. Kia Kaha
What sort of informatioon were you asking for?
"all information held by the NASCs in their capacity as contractors to the Ministry of Health, relating to the implementation and operation of Funded Family Care. This includes any material generated by the NASCs for their own use in assessing and implementing Funded Family care."
I've made a number of requests relating to FFC and been fobbed off with most of them. The guidelines to the NASCs are most interesting for what they do not say.
There is a Ministry of Health database called SOCRATES that holds all the NASC information. Several years ago an enormous amount of disability funding went into establishing it (and questions were asked in parliament) in the apparent belief it would make things equitable and transparent across the various NASCs and regions of NZ (I think there are about 16 different NASCs all independent businesses left over from the 1990s 'health reforms'). We (consumer representatives) were led to believe that the information would be made publicly available. Seems not.
"The Ombudsman's reference to section 2(5) of the Act is correct for independent self-employed contractors to the Ministry who are considered in a similar position to an employee; information they hold is deemed to be held by the Ministry. However NASCs are independent organizations delivering services to members of the public and while the Ministry commission's [sic] services from NASCs, they are not considered as independent contractors to the Ministry for the purposes of the Official Information Act. "
The Ombudsman disagrees. That's a LGOIMA decision, but the same principle applies to OIA.
Unfortunately, given the scope of your request, you'd be looking at a high charge or an administrative refusal. A narrower request which actually specified the information you were seeking would have more chance of success.
The guidelines to the NASCs are most interesting for what they do not say
So you do have the guidelines already?
yes, I have the guidelines on FFC for both the NASCs and FASS.
And to answer Idiot Savant, I made narrower and more specific requests earlier, and by the time I got to this one I had decided to go for as much as possible. If there is cost they have to come back and tell me that but I don't see how there would be a great deal of material involved here, as virtually all the instructions come from MOH.
Also I had Ombudsman office advice before I made my OIA requests, but the MOH clearly disagrees on 2(5) and I'm not a lawyer.
There is incredible reluctance to provide information which the MOH must have on this topic, which only makes me more curious.....
However, I'm conscious of somewhat highjacking this thread, apologies for that.
I'm tempted to think that what we need right now is an Edward Snowden of the public sector. And he'd go a whole lot further than the MFAT leaker.
Also I had Ombudsman office advice before I made my OIA requests
oh it's highly relevant. hijack away. :)
Your Ombudsman link isn't working.
I've tried all sorts with this particular effort on Funded Family Care. If I can get past the contractor issue, the specific information will come out because I did make narrower and highly specific earlier requests. However I'm new to this OIA business and appreciate all the help I can get. If I need to put in any further requests, perhaps you will offer some insights?
The information I am seeking is based on a suspicion that there is a significant requirement for unpaid support time before Funded Family Care can be made available. The idea is based on the fact that the small number of families which have been granted Funded Family Care and chosen to take it up mostly involve high numbers of required support hours and low hours of FFC. Only 9 of the 121 families ( at the time of my information) had more than 35 hours. This is for people who require what most people consider 24/7 support. Of course there is other support funding which can come into play as well, like Individualised Funding, but it still seems very odd to me.
so am I right to say you're seeking details of the eligibility assessment process?
Actually the 1,500 people leaving benefit for work is probably correct and it is FEWER than the weekly average for the period 1999 - 2005 as reported in the Welfare Working Group's "The Issues" paper (p11). lots of possible reasons of course, but it doesn't appear that the reforms have substantially improved Work and Income's ability to find employment for people. This is a topic I hope to write about in the next blog piece.
You are right about the risk that people who need financial assistance and are entitled to it may be being deterred from applying by the application process. You hear anecdotes but we just don't know the size of the problem - again something one would expect an evaluation plan to cover.
Your Ombudsman link isn't working.
Bloody Ombudsman's website. Go to Liberty, search for "contractor", and look at Case Notes [W48879]. Its actually about a contractor of a contractor, and the Ombudsman upheld LGOIMA applicability because they were ultimately working for a city council.
Great post, Michael. You raise some very important questions on these changes.
I also agree with you that the welfare reforms don't seem to have improved W&I job matching capability. I also wonder if the churn figures around returns to benefit would tell an interesting story about the sustainability of the reported benefit exits.
Do you think the dissolution of CSRE (and the broader move away from doing much, if any, evaluation of effectiveness across government) may have led to a situation where MSD simply don't have the capability to carry out an evaluation of any significant size?
Reading about the opaque responses you received to requests for the evaluation information does make me wonder if they may be running into issues of how to evaluate the changes in a credible way.
I know one person who felt so humiliated by the process and the requirements for jobseeker or whatever they call it now, that he goes without. My circle of friends is pretty small, so if I know one, there must be many more people like him. He's in the invidious position of being contracted to work for a tertiary institution and not being paid over the long Christmas break, contract runs March to November or December and no allowance for the long break. The first year (yes, the casual/temporary contract has rolled over 4 or 5 times now) he registered and had such a bad time he has never done it again. Yes, he's off the jobseeker stats, but he saves all year to be able to do that, rather than be humiliated again.
Only 9 of the 121 families ( at the time of my information) had more than 35 hours.
oops, sorry folks, I've just been over the figures and I got this one wrong. There are actually 24 of the 121 families getting more than 35 hours per week. There are 9 getting 20 hours or less, and the remaining 88 lie between 35 and 20 hours.
so am I right to say you're seeking details of the eligibility assessment process?
No, not exactly, the stated eligibility criteria are clear. But I think there may be an imposition of a requirement for a certain number of unpaid support hours once the person's support need is assessed. Otherwise, why would the NASCs be offering only a few paid hours a week to family members who are providing many hours of support? The only people eligible are those with high/very high and complex needs, by definition they need a lot of support.
This imposition, if it is happening, is concealed, it's not in the stated policy or guidelines. However, unpaid/informal support was a big part of the strongly leading consultation document on payments for family carers, it was and is a powerful expectation from the MOH. I just want to know if they have made it a requirement, if so why it is concealed, and whether it varies according to family capability/willingness, for instance whether they differentiate between a solo mum with an adult disabled child and an extended family supporting such a person. Because there is a vast difference.
Most people assessed by my NASC will not know what their support hours were assessed as. They don't routinely tell you that, they simply offer some hours, take 'em or leave 'em. Only if people ask what their assessed hours of support need are, will they know what the extent of the discrepancy is between assessed need and offered hours. It's that discrepancy which bothers me with FFC.
Yes, thanks I see and the Ombusdman's office advice certainly supports this view in my case, but is there anything I can do other than wait for the Ombudsman? I've already written back to the MOH stating that the Ombudsman disagrees with their view and quoting 2(5). I was rebuffed. They just reiterated their position. Do you think its worth me pointing out this case to them? I could also take it to a Disability Law Office, I think, but I'm not sure if they'd be willing to take it before the Ombudsman's process is finished. It may be worth asking that question.
Angela, I have had some dealings with the Ombudsmen Office. It was clearly pointed out to me, that all they can do is make recommendations and issue reports, as the Ombudsman Act apparently states, but they cannot enforce these. They are not binding on the agencies, departments or institutions that they may be directed at.
So at best, an Ombudsman recommendation containing their view, will at best be "noted" and considered for future conduct, but is not mandatory to be followed.
Same like the Health and Disability Commissioner, the Privacy Commissioner and other public officers, they have a lot of discretion as to what to investigate and recommend, but little actual power to enforce much at all. They can though refer matters to other authorities to deal with them, but even that does not mean those will act in your interest.
These public offices were brought in long ago, to make it look good, as if the public and affected had any real "right" to take action, but in reality, they are all just "buffers" or hurdles, to keep people from taking government agencies and other agencies to court. The HDC had over 1,600 complaints last year, and only 60 or so were formally investigated, of which 42 cases had breaches of the Code the HDC "enforces" established. Few ever were referred to the Director of Proceedings. The HDC, same like other Commissioners, same as the Ombudsman, mostly use discretion to sort things out with parties involved, which does not result in all that much in the way of sanctions, binding actions or whatever.
We need a law change, to bring about a system, where they can actually be forced to take certain actions, and enforce the recommendations they make.
Angela, the ONLY place, where you can achieve anything that will result in binding decisions, or at least precedents setting legal standards, is the High Court and other courts above it!
Thanks Marc, yes, I understand, it's just that I've been reluctant to fully accept that we no longer live in a valid democracy. Legal avenues are already compromised, to borrow from Rosemary's Paying Family Carers post on Access:
"We took (another) deep breath and tried to give a précis of what happened in Parliament on the 17th of May 2013.
We explained how maliciously difficult the government had made it to actually access the much-publicised Funded Family Care scheme. We explained how only a handful of people had successfully applied.
When we told her that spouses and partners were still unable to be paid, she said “Oh, so you’re going to have to take another case to the Human Rights?” I had to walk away at this point. Peter explained about section 70E of the new Act:
On and after the commencement of this Part, no complaint based in whole or in part on a specified allegation may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation may be commenced or continued in any court or tribunal.
So, this is where we’re at after well over a decade of discussions, mediation, five weeks of Human Rights Review Tribunal hearing, two weeks in the High Court and just over a week in the Appeal Court.
In case you missed the news... we bloody well won."
(There are links on the actual post that may not have transferred in my copy and paste.)
There can no longer be any expectation that decisions reached by a High Court, or any other, will be respected by Government. The compact between legislature and judiciary has been breached and can be again.
I could go through the courts and win, as the Atkinson plaintiffs did, but lose in the end because the Government may choose to override the court.
Links from Rosemary's quote which didn't transfer:
NZ Public Health and Disability Amendment Act 2013
Few parents get paid http://www.nzherald.co.nz/simon-collins/news/article.cfm?a_id=135&objectid=11240668
So why is the Ministry of Social Development hiding behind the Official Information Act to avoid telling us how they plan to do that? Are they only interested in cutting the fiscal liability?
In my humble opinion the answer to your question is Yes!
Not only are they only interested in cutting cost, they do not want to have any kind of research or evaluation because it may expose the damage being done to the fabric of our society. After the election, as you point out, it won't matter.
We are not helpless but our options are narrowing.
Thanks for your reply, Angela, and yes, I must concede, even High Court and higher court rulings may be circumvented by the legislative. What the government did was they "qualified" the courts' verdicts and interpreted it their own way, and then made a new law, that offered abysmally poor "help" to the affected carers, and denied a new legal challenge for the cases that had been brought.
And natural justice is constantly ignored in legislation now, as it was with parts of the Social Security (Benefit Categories and Work Focus) Amendment Act! There are discriminatory provisions in the Social Security Act now, that were brought in under that amending Act. Also have there been many breaches of natural justice in the way that sick and disabled beneficiaries have been treated when "assessed" and examined by WINZ's own "designated doctors" (paid and trained by them), and who had to go to that useless Medical Appeal Board for hearings (panel members are all appointed by MSD). By the way, there is NO way to proceed with a challenge of a MAB decision and take it further to a court! Their decision is final, and only a judicial review may be a remedy, but that is only possible where there was a breach of law in the MAB decision.
The law has indeed become a farce, I fear, and the limitations under legal aid now, they stop so many from taking action that is needed.
It gets worse, the Prime Minister has a Chief Science Advisor, Sir Peter Gluckman, and even he does not seem to be taking a stand on the way sick and disabled are being assessed under new provisions and with using "questionable science". See the following post he wrote on in "nature" on 12 March this year, but read especially the comments below!
To my knowledge there has been NO comment coming from Dr Gluckman on matters and questions raised by someone there! So we have a Chief Science Advisor who does not dare to speak up and hold his government to account.
By the way, there is NO way to proceed with a challenge of a MAB decision and take it further to a court!
Perhaps the route taken by Acclaim? A shadow report to the UN highlighting the lack of access to justice of ACC claimants.
It would require a group of (dis)affected individuals to organise, in spite of their financial and health difficulties and is not simple, but as Acclaim has shown, it can be done. It remains to be seen whether the embarrassment of being shown up in the international community is sufficient for the Government to fairly address the problem in a timely manner.
"So we have a Chief Science Advisor who does not dare to speak up and hold his government to account."
We have a great many individuals and organisations who consider that they have too much to lose by challenging policy. The Problem Gambling foundation serves as an example. Most of the DPOs (Disabled People's Organisations) rely on Government funding and are no longer effective advocates.
The media are also quite careful what they report and how they report it, probably for sound financial reasons.
Dr Gluckman, is smart enough to know when he is being used.
Thanks for the Nature link, I've skimmed it but there's a lot more to explore there.