The mother of a young man with Down syndrome, autism and epilepsy is appealing to the Supreme Court in her bid to achieve the full rate of carer’s allowance.
The woman, who cannot work due to caring full-time for her 18-year-old son, receives a reduced rate of carer’s allowance due to the means testing of her partner’s income, which is €850 a week.
In agreeing to hear her appeal against the High Court’s rejection of her case, the Supreme Court said it would consider the extent to which article 41.2 of the Constitution, which refers to a woman’s “life within the home” providing a common good, has a bearing on her claim.
Article 41.2 is among a handful of articles mooted for inclusion in an upcoming referendum. A Citizens’ Assembly recommended in June 2021 that it should be replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.
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In a determination published this week, a three-judge Supreme Court panel said the court had not extensively considered article 41.2 and had never examined it in the context of providing public funds to parents who are obliged to care for severely disabled children on a full-time basis.
The case raised issues of systemic importance for the carers of severely disabled children and was exceptional enough to warrant a direct appeal to the top court, bypassing the Court of Appeal, the judges said.
The High Court’s Ms Justice Niamh Hyland dismissed the woman’s challenge last June, saying she could not agree with her contention that the Minister for Social Protection had acted unlawfully by not using her discretion to make regulations varying the means test rules on entitlement to carer’s allowance.
The judge had a “great deal of sympathy” and said the reduction of the carer’s allowance by €85 per week had had a “profound adverse effect” on the mother and caused “significant personal and financial strain” to her and her family.
However, the judge held, the Minister, although entitled, was not obliged to make such regulations under section 186(2) of the Social Welfare Consolidation Act of 2005.
In their determination, Ms Justice Marie Baker, Mr Justice Gerard Hogan and Mr Justice Maurice Collins said the issues raised deserved to be examined directly by the Supreme Court.
As well as considering the extent to which article 41.2 applies, the court will examine whether the Minister is under any obligation to make regulations dispensing, in part or in whole, with the means-tested calculation for the payment.
The appeal also raised important issues about the separation of powers and whether the court could make any order requiring the Minister to make regulations that affect the appropriation of public money, the judges said.
The application for an appeal was opposed by the respondent Minister, Social Welfare Appeals Officer, Attorney General and Ireland. The mere invocation of article 41.2 does not mean the appeal was of general importance, they submitted.
The woman’s lawyers submitted in the High Court that regulations made under the 2005 Act were “under inclusive”. They pointed to article 41.2 recognising the work performed by women in the home and submitted this is breached by the State’s failure to recognise her work in the home for her son.
The respondents said the means test did not interfere with the woman’s right to earn a livelihood inside or outside the home. The allowance was a financial assistance to people providing care and was not intended to function as a salary in remuneration for full-time care, they contended.
