Analysis: The final report from the landmark Royal Commission of Inquiry into Abuse in Care delves deep into the decades-long impacts of segregation, institutionalisation, neglect and abuse faced by disabled children and adults.
In one chapter, the commission describes the Kimberley Centre – a ‘psychopaedic’ institution for those with intellectual disabilities – as a “hellhole”.
Children and adults were stripped of their identity, culture, dignity, and right to education. They were locked away in the back blocks of Levin, “out of sight, out of mind” – as it was put by the late Sir Robert Martin.
Deaf children were unsupported by local schools, and when they attended specialist schools they were abused and degraded. They were banned from using sign language; their hands tied.
In the decades since the institutions shut down, exclusion, segregation, a lack of support and inequitable outcomes have remained part of the reality for children growing up with disabilities
Before his passing, Martin – who later in life became an avid reader and a disability rights activist who promoted self advocacy – told the commission he didn’t want disabled children to have the same childhood he did.
“My hope is that there is an end to segregation, institutionalisation and discrimination, and that all the children of tomorrow grow up in caring, well-supported families, and that schools, communities and societies shift to be inclusive of all people.”
Now, there is a chance for that desire to become a reality.
Last week, after more than 13 years of legal proceedings, IHC and the Ministry of Education settled a landmark human rights case that seeks to enable disabled students to have equitable opportunities to enjoy a meaningful education.
IHC chief executive Andrew Crisp says this settlement represents a “strong starting point” for improving how the Government supports disabled students’ learning in their local schools.
“Families, teachers and principals have told IHC over several decades that government policies led to exclusion for disabled students in local schools. With the stories and data contributed by those experts and people with lived experience, IHC put forward nine action areas for change.”
The settlement centres on the ministry’s promise to implement a framework that includes things like better data collection and reporting, improved access to specialist support services, and a commitment to look into more accessible infrastructure, a new funding system and the impacts on ongoing ableist attitudes.
Education Minister Erica Stanford acknowledges that “for too long children have waited to receive support, or missed out altogether, on the help they need to reach their potential”.
Both she, and her Secretary for Education, have pointed to their commitment to a system-wide reform and steps already taken to improve access to specialist support, including the $750 million investment in learning support in this year’s Budget.
Massey University head of Institute of Education professor Alison Kearney – a past director of the Equity Through Education Centre – tells Newsroom the settlement is a welcome move, and she hopes IHC, the Government and key stakeholders can work together to implement the framework.
“There is no doubt that disabled students have been discriminated against in terms of education. The Government has not met their obligations under the 1993 Human Rights Act, with many generations of disabled students being excluded from and within school.”
Kearney grew up in the ’60s and ’70s, with a brother who had an intellectual disability. Because of that disability, he never had the opportunity to go to school with his brothers and sisters.
“We have come some way since then, but disabled people and their whānau will still tell you that we have a long way to go,” Kearney says.
Getting there will take a genuine commitment from the Government to meet the needs of disabled students and fulfill its human rights obligations. It’ll also take money.
For those who have disabilities, or work in the sector, it’s been a rough couple of years. Changes to benefits, along with under-funding, funding changes and the upheaval in Whaikaha (Ministry of Disabled People) have all taken a toll.
Meanwhile, NZEI says information released to the education union under the Official Information Act, shows disabled and high needs students are still waiting up to 116 days – or 64 percent of the school year – to access essential learning support.
The figures also show students with severe needs (covering learning, hearing, vision, physical, language use and social communication) wait an average of 25 working days just to receive the outcome of their application for support under the Ongoing Resourcing Scheme (ORS).
But there may be green shoots emerging.
As well as the IHC out-of-court settlement, last week saw the Supreme Court rule that family carers are engaged in an employment relationship with the Ministry of Health, and are undertaking “work” for at least some of the time they are taking care of their family members.
The appeal was taken by Christine Fleming and Peter Humphreys – two parents who provide full-time care for their adult disabled children.
Disability Rights Commissioner Prudence Walkers says the decision is welcomed, but the Government’s legal response, which resulted in a protracted battle, is not.
“Whether support is managed directly or through third parties, the state is responsible for ensuring that the employment arrangements uphold the rights of disabled people to live independently and be included in the community,” Walker says.
“That relies on good employment conditions for those supporting them, recognition that one size does not fit all, and the need for flexibility.”
While there are still outstanding issues in this case – namely that of backpay for the carers – there will also be broader financial implications for the Government that flow from this decision.
Last month, the Government unveiled its new draft carers action plan, proposing a ‘National Carers’ Appreciation Day’. But the plan does not propose any new funding or remuneration for carers.
This Supreme Court decision will now force the Government to stump up to pay family carers, who in 2022 accounted for 14 percent of the adult population or 432,000 people – the majority of them women, Māori and Pasifika.
Otherwise, the Government will need to make the tough call to legislate over the top of the Supreme Court decision to remove that recognition of the work carried out by those who care for some of the country’s most vulnerable.
With the potential implications of this decisions, as well as the difficult fiscal position that – in part – motivated significant changes to the pay equity regime, Newsroom asked the responsible minister what this case means and ‘what next’. “We’re looking at it,” Penny Simmonds says.
