“Funding decisions of this nature can have immediate and substantial impacts on disabled people and the communities that support them,” she said.
“Where public decisions affect access to essential services and support, it is critical that those decisions are made lawfully, transparently, and in a manner consistent with Te Tiriti o Waitangi and human rights protections.”
Barrister Max Harris said it was “very clear” the sudden Whaikaha changes have “had a tectonic impact on the disability community and caused widespread distress”.
“The clients in this case are now arguing that the March 18 [change] was unlawful.”
Barrister Max Harris appearing for a different hearing in Auckland in March last year. Photo / Michael Craig
The applicants say the Government did not consult the community sufficiently before making the changes which, they say, breach the Treaty/Te Tiriti and human rights under the New Zealand Bill of Rights Act 1990. They want the court to issue a formal declaration that the decision was unlawful.
The announcement of the changes in 2024 was sudden and fraught. Many found out about them when they were posted on Facebook by the ministry, which was then inundated with distressed families criticising the new rules.
In the days after the announcement, Simmonds conceded to RNZ’s Morning Report that the Ministry for Disabled People had gone about revealing the rules the wrong way.. Simmonds and the ministry both apologised for the way it was handled.
At that time, Luxon said he still had confidence in Simmonds but that she had not handled the changes well.
The changes placed new limits on what disabled people could purchase with their funding and changed the way equipment such as wheelchairs and home modifications were prioritised. At the time, families and advocates said they were “blindsided” by the ministry’s announcement, which came without warning and was effective immediately.
Prime Minister Christopher Luxon with Social Welfare and Employment Minister Louise Upston, who has taken over disabilities responsibilities from Penny Simmonds. Photo / Mark Mitchell
Simmonds at the time said the changes were a response to funding for disability support services having “blown out” under the previous Government, shifting from no flexibility to “total flexibility”.
In September, Upston, having taken over the portfolio from Simmonds, announced the purchasing rules from March 2024 would no longer apply.
“Difficult decisions had to be made in 2024 to limit ongoing acceleration of costs,” she said, but “the disability community has made it clear they want the freedom to make their own decisions on what supports and services they need.”
Anne Shaw, deputy chief executive of disability support services for MSD, said her team undertook a nationwide consultation with the community last year.
“We recognise that the March 2024 changes to the purchasing guidelines were challenging for the disability community. Feedback from the disability community made it clear that they would like a flexible funding system where they are trusted to use their flexible funding in a way that best meets their needs,” she said.
“With the removal of purchasing guidelines from April 1, 2026, disabled people will have more choice and control over how they spend their flexible funding within their budget and agreed support plan.”
Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.