A significant appeal over the refusal of the maximum carers allowance to a mother caring full time at home for her profoundly disabled son is set to proceed before the Supreme Court next month.
The appeal raises issues described by the court as of “systemic importance” for carers of severely disabled children.
The issues include the State’s obligations, if any, to home-based carers under article 41.2, the “woman’s work in the home” provision left intact after the emphatic rejection of the care referendum.
Under article 41.2, the State recognises that women’s work within the home contributes to the common good and provides the State “shall therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties within the home”.
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A Government proposal to replace article 41.2 with a new article 42B providing the State shall “strive” to support care provided by family members to each other, was rejected by almost 74 per cent of voters last Friday.
The mother at the centre of the Supreme Court appeal cares full time at home for her son, who has significant developmental disabilities, hyperactivity and serious behavioural issues, including repeated head banging. His chronic sleep difficulties mean he requires care during the night.
The carer’s allowance is a non-contributory form of means-tested social assistance under the Social Welfare (Consolidation) Act 2005. Section 186.2 of the Act enables the Minister for Social Protection to make regulations effectively dispensing with the means test requirement.
The woman, who has no means of her own, was assessed in 2021 as entitled to €134 weekly, rather than the full allowance of €219, because her partner, the father of her son, earns €848 weekly.
In High Court proceedings against parties including the Minister for Social Protection, Ireland and the Attorney General, the woman argued she is entitled to the maximum allowance.
Much of her case rested on claims the Minster is legally obliged to make regulations that would result in her receiving the maximum payment. She claimed the failure to do so breached her constitutional rights, including to equal treatment and under article 41.2 to have her work in the home recognised and supported.
While dismissing her case in June 2023, the High Court’s Ms Justice Niamh Hyland said she had “a great deal of sympathy” for the woman.
The judge was satisfied the reduced allowance causes “significant personal and financial strain” to the woman as her son’s full-time carer and to the family unit. She could “entirely understand” why the woman would consider €134 weekly insufficient to support the work she is obliged to do, “day in, day out, without a break” save for when her son was provided with daycare services.
The woman’s core argument in the High Court concerned alleged “under-inclusivity” of the relevant 2007 regulations and that the Minister’s entitlement to make regulations for more generous care payments amounted to an obligation.
In disputing any such obligation, the State said the carer’s allowance is assistance for full-time care, not a salary, and argued there was nothing to prevent her working outside the home. The regulations did not fail to recognise her work in the home and are expressly supportive of the work of carers such as her, it was argued.
The High Court concluded the Minister may, but is not “obliged” to, make more generous regulations concerning the level of carer’s allowance. Even accepting the allowance vindicates the life of the woman within the home by making it possible to stay there and care for a disabled child, article 41.2 cannot be treated as dictating the level of allowance to be paid because that would trespass on the executive function, Ms Justice Hyland also held.
Last October, the woman’s lawyers secured a “leapfrog” appeal, one direct to the Supreme Court, after a panel of that court’s judges said the appeal “raises issues of systemic importance for the carers of severely disabled children”.
The appeal, the panel said, raised important issues regarding the separation of powers because any obligation on the Minister to make regulations has implications for the spending of public money. It was unclear whether the court could order, or the Oireachtas could validly authorise, the making of such regulations, they said.
Article 41.2 has not been extensively considered by the courts and has never been examined in the context of the provision of public funds to parents obliged to care full time for severely disabled children, they noted.
The appeal will address whether the High Court was correct in finding article 41.2 cannot be regarded as dictating the level at which the State must provide a carer’s allowance or as otherwise mandating the making of regulations by the Minister under the 2005 Act.
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