Test for Whaikaha as tribunal progresses disability inquiry

The obvious questions in all of this were how does the “eco-system” look without Te Aka Whai Ora? And how does this impact tāngata whaikaha Māori?

In late March, the Waitangi Tribunal met for a week as part of Wai 2575, the kaupapa inquiry into health services and outcomes.

While every week of tribunal time is important – and usually represents tens of weeks of preparation by everyone involved – this most recent hearing week signals that we are on the home stretch for the disability stage.

To recap, hundreds of claims have been filed in the Waitangi Tribunal relating to the broad kaupapa (or theme) of health services and outcomes. The tribunal has separated these claims into sub-themes so that it is able to work through them methodically.

The first stage was heard in 2018 and involved primary healthcare, with claims by the National Hauora Coalition, Lady Tureiti Moxon, Janice Kuka, Taitimu Maipi and Hakopa Paul about the design and implementation of the Primary Health Care Strategy 2001.

The resulting report from the tribunal has been influential in lots of ways, most obviously through the establishment of Te Aka Whai Ora.

Disability is the tribunal’s second area of inquiry (if you leave to one side the urgent inquiry into COVID-19 measures).

“Disability” potentially includes most social sector agencies but especially the provision of disability support services, ACC funding and how the health system meets the health needs of disabled people.

The tribunal claims themselves involve a diverse range of claimants including individual tāngata whaikaha Māori (Māori with lived experience of disability) and their whānau, representative groups of tāngata whaikaha Māori, Māori disability advocates and Māori providers.

The first evidence on disability was heard back in March 2022 (with hearing week one focusing largely on fetal alcohol spectrum disorder and ACC funding issues).¹ It took eight hearing weeks across two years to get through all of the claimant and expert testimony, which finally happened in November last year.

So, in March, the tribunal got its first chance to hear directly from government agencies on their understanding of the disability framework and how it works for Māori.

It’s not my intention to go through the evidence presented last month in detail, as that’s still actively in the domain of the Waitangi Tribunal, but the highlights were that Whaikaha (the Ministry for Disabled People) and the Ministry of Health both outlined how the disability “eco-system” is meant to work.

This includes being clear about what is in the domain of Whaikaha (eg, disability support service funding for people under 65, equipment and modification services equating to about $2.2 billion a year, and roles in transforming the wider disability system in line with the enabling good lives principles); what sits with the Ministry of Health (health policy for disabled people, stewardship of the health system including data) and what is the responsibility of other agencies (the Ministries of Social Development and Education also giving evidence).

The obvious questions in all of this were how does the “eco-system” look without Te Aka Whai Ora? And how does this impact tāngata whaikaha Māori? Especially given that when the evidence was written at the end of last year the Māori Health Authority was very much a going concern.

The answer to this question is, however, a bit illusive. It is hard for officials to answer questions in the tribunal on what are essentially political decisions, just as it is hard for anyone to answer questions on how something will look if they’re still figuring that out. And both situations apply here.

As there is work currently under way to lift and shift staff and functions from Te Aka Whai Ora to Te Whatu Ora (or presumably the Ministry of Health), I expect this will be revisited in August when the tribunal meets again to hear Crown evidence.

Similarly, the August hearing week will be a chance for the tribunal to consider the implications of Whaikaha announcing changes to its purchasing rules on 18 March (the same time that officials were giving evidence in the tribunal). These new rules, coming in the wake of budget pressures on Whaikaha, limit what people can purchase using their individualised disability support service funding and introduce new prioritisation measures for equipment and modifications.²

These announcements were immediately called out on social media by tāngata whaikaha Māori, disabled people and disability advocates as having an immediate and serious impact on access to essential supports.³

Writer and disabled community advocate Henrietta Bollinger called them “a massive step backwards into the past”.⁴

They were labelled callous by opposition MPs.⁵

The lack of engagement with tāngata whaikaha on the changes led to apologies from Whaikaha, and the prime minister has acknowledged the changes were “poorly consulted and poorly communicated”.⁶

A week following the Whaikaha announcement, the Ministry of Disabled People updated its website to note that the changes to the purchasing rules will be in place until they have completed work with disabled people, tāngata whaikaha Māori and whānau to develop “long term settings” (which I think is code for a more sustainable fix to budget constraints).

This is positive on the face of it, but the challenge for Whaikaha – always but especially when participating in a Waitangi Tribunal inquiry – is to demonstrate how it is doing better for tāngata whaikaha Māori than the Ministry of Health-run system it was set up to replace. This means genuine partnership, and being held to account when things go wrong. Which, I expect, will be questions for the tribunal’s August hearings as well.