Disability Support Services Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

Independent Review of Disability Support Services: A Report to provide advice on the actions that should be taken immediately in the 2024/25 financial year to better manage the increasing cost pressures faced  by Whaikaha – Ministry of Disabled People, Sir Maarten Wevers, Leanne Spice and Rev Murray Edridge, 28 June 2024, accessible at: 05_AUGUST-CABINET-Paper-Appendix-1-Independent-DSS-Review-redactions-applied-FINAL.pdf  

The Bill responds to the Supreme Court judgment regarding paid family care in Fleming v Attorney-General and Humphreys v Attorney-General [2025] NZSC 188. It does this by clarifying employment relationships and contains measures to manage Crown fiscal and litigation risks.    

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

The United Nations Convention on the Rights of Persons with Disabilities is relevant context and discussed in section 3.1 below. 

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

Regulatory Impact Statement: Establishing a legislative framework for funded disability support services, Ministry of Social Development, 24 March 2026, accessible at: https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/regulatory-impact-statements/establishing-a-legislative-framework-for-funded-dss.pdf

2.3.1. If so, did the Ministry for Regulation provide an independent opinion on the quality of any of these regulatory impact statements?

NO

The Ministry for Regulation did not review the regulatory impact statements as it did not meet the threshold for the Ministry for Regulation’s assessment.

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

NO

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

NO

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

The Regulatory Impact Statement sets out the potential costs and benefits of its options.  Officials could not provide quantification from the perspective of national cost benefit analysis due to lack of data.

Without legislation to introduce certainty to paid family care arrangements, the Crown is exposed to ongoing litigation. Officials estimate the one-off wage liability begins at over $600m if half of people in similar circumstances as the Supreme Court litigants file legal claims.

The Bill limits what remuneration Family Carers can seek from the Crown, this acknowledges:

•       the Crown was never intended to be the employer of any carers, including paid family carers

•       the Crown’s ability to set funding policy in a constrained fiscal environment

•       the shared responsibility for the care of disabled people between the Crown and families.

Existing policy settings are saved to ensure the benefits of certainty and consistency in access to DSS by disabled people and their families/whānau. There will be no change to funding allocations for any disabled person on commencement of the Bill. Similarly, all existing employment arrangements are validated for a time-limited period of three years so that more appropriate measures can be developed and enable a smooth transition for those disabled people and families/whānau who will access them.

The provision of a foundational legislative framework for DSS improves the transparency, fairness and consistency of decision-making for DSS.  

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

NO

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

NO

The legislation does not create new obligations or standards, or impact on existing obligations or standards.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

Officials consider the policy proposals are consistent with the Convention on the Rights of Persons with Disabilities (CRPD). In particular, the proposals support disabled persons having choice in the supports they use, support participation, to maximise available resources, take appropriate measures to provide access by disabled persons to support them exercising their legal capacity, and providing access (including through flexible funding) to a range of community support services.

An area of inconsistency is that there was a limited consultation with persons with disabilities and their representative organisations in developing the Bill.  However, the select committee process allows for disabled persons and their representatives to provide their views on the Bill.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

The Bill is consistent with the principes of the Treaty of Waitangi.  An assessment was undertaken of Treaty of Waitangi principles, which concluded that no reference to the Treaty was considered necessary.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

NO

Assessment of the Bill’s consistency with the Bill of Rights Act is in progress.

Advice provided to the Attorney-General by the Ministry of Justice, or a section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice’s website upon introduction of a Bill. Such advice, or reports, will be accessible on the Ministry’s website at https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/the-bill-ofrights-act/advice/

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

NO

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

The Bill limits litigation on certain matters.  It clarifies intent and validates actions taken in good faith to provide choice for disabled persons by making it clear that the Crown was never intended to be an employer of carers. Therefore, it limits the ability to take legal action in relation to these matters.  

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice was consulted on the policy proposals to limit litigation, extinguish pending claims and retrospectivity as part of the departmental consultation on the Bill.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

NO

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

The has been no external consultation on the Bill.  However, policy development has considered:

•       feedback from previous community consultation in 2024.  Summary of feedback accessible at: Responses to 2024 DSS survey and submissions | Disability Support Services

•       feedback from previous community consultation in 2025.  Summary of feedback accessible at: Community consultation - now closed | Disability Support Services

•       feedback from focussed engagement with stakeholders on the purpose of DSS in late 2025.

Agency consultation on the policy proposals was done with the following agencies: Oranga Tamariki, Public Service Commission, Treasury, Te Puni Kōkiri, and the Ministries of Business, Innovation and Employment (and Accident Compensation policy), Disabled People, Justice, Health (and Health NZ), Education, Ethnic Communities, Foreign Affairs and Trade, Pacific Peoples, Social Development, and Women. Parliamentary Counsel Office and the Department of Prime Minister and Cabinet were informed.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete?

YES

The proposals to use ministerial programmes and directions draw from the Social Security Act 2018 experience. The use of these tools is well-tested in social assistance policy.

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

YES

The Bill engages the right to freedom from discrimination (section 19) and the right to justice (section 27) of the New Zealand Bill of Rights Act 1990. These issues arise particularly in relation to:

•       how disability support funding is targeted,

•       how paid family care arrangements are treated for employment law purposes, and  

•       how the current legal uncertainty is addressed. This includes limits on litigation and validating existing employment and agent arrangements.

These provisions are justified by significant public interests. These include:

•       maintaining continuity of care for disabled people

•       preserving a coherent and sustainable disability support system, and  

•       ensuring that system‑level policy decisions are made by democratically accountable institutions rather than through fragmented litigation.

It is in the public interest to ensure that the Government does not incur unmanageable fiscal costs and that decisions about how limited resources are allocated sit with the Crown within the parameters set by Parliament.  

In terms of the litigation bar and extinguishing of claims in relation to employment, this reflects that it was never intended for the Crown to be the employer of family carers.

Any limits on rights are intended to be carefully constrained and proportionate to these objectives.

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

NO

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

NO

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

YES

The Bill allows for the defining of eligible persons to be provided for in ministerial programmes.  The Act uses the term ‘eligible’ persons to set out that only some disabled people are eligible for disability support services funding.

The defining of eligibility for each ministerial programme recognises the diversity of eligibility for various DSS programmes. For example, eligibility for home and car modification may differ from eligibility for residential care supports.

4.8. Does this Bill create or amend any other powers to make delegated legislation?

YES

The Bill provides for the ability to make delegated legislation. There are two forms of secondary legislation: ministerial programmes, and ministerial directions.

Ministerial programmes provide for DSS funding policies programmes to be established and are secondary legislation under the Legislation Act 2019. These programmes provide flexibility to tailor support for specific groups, address technical matters, respond quickly to emerging issues, and trial new approaches. Ministerial programmes and directions are matters of detail which it is not appropriate to utilise parliament time. Ministerial programmes require a consistency accountability statement under the Regulations Standards Act 2025.   Ministerial programmes must be published, can be reviewed and disallowed by Parliament.

Ministerial programmes may specify eligibility criteria, provide criteria to be taken into account for allocation of funding, and impose conditions on the use of funding.

The Bill provides for ministerial directions, allowing the Minister to give written general or specific directions on how certain powers, functions, and discretions are exercised. 

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

YES

The Bill validates existing employment arrangements between disabled persons and their carers, including where the disabled person does not have decision-making capacity to enter into the employment arrangement. It also retrospectively validates agent arrangements (persons who act on behalf of disabled person but where there is no relevant order in place under the Protection of Personal and Property Rights Act 1988 (PPPR Act). It is not possible to quickly identify all disabled people in the system who may lack decision-making capacity, nor to switch funding packages and care arrangements to ensure that a person who does not have capacity does have a PPPR Act order in place.  The retrospective validation of employment relationships and nominated-agent arrangements provides for continuation of care arrangements for disabled persons and the use of funding packages that allow choice in what arrangements are put in place. It supports continuity of care whilst more appropriate arrangements are put in place.

The Bill clarifies that care provided by a paid family carer in excess of the hours for which funding is provided is not considered “work” for the purposes of the MWA.  This is to mitigate the risk that a court will require the Crown to make payments to carers that are inconsistent with DSS funding policies.

This reinforces that the Government makes decisions on use of Crown funding and funding policies. It also recognizes the expectation that families contribute to care and the indirect risks to the Crown and system if the Courts determine additional hours are ‘work’ outside of what the DSS funding policies set. This clarification is temporary for three years to allow for an alternative payment model for family carers to be developed, tested, implemented, and for family carers to steadily transition out of employment relationships.

The Bill limits litigation on employment related matters. It does this to clarify intent and validates actions taken in good faith to provide choice for disabled persons by making it clear that the Crown was never intended to be an employer of carers, controlling third party or persons in breach. Therefore, it limits the ability to take legal action in relation to these matters.  It addresses risks of further litigation and potential fiscal risks to the Crown arising from the Supreme Court judgment Fleming vs Attorney-General and Humphreys vs Attorney-General [2025] NZSC 188.  The litigation bar is retrospective because it applies from the date of introduction, rather than commencement, of the Bill.  This is to acknowledge that some claimants may be incentivised to file a claim during the Bill’s passage through the House of Representatives.  The policy objective is for the Bill to represent finality on employment matters.