A woman and her profoundly disabled son have lost their Supreme Court appeal over a means-tested reduction of her carer’s allowance.
The five-judge court unanimously agreed that the Minister for Social Protection was not obliged to introduce regulations that would effectively dispense with the means-testing element.
The court said article 41.2 of the Constitution, which remains intact after the electorate resoundly rejected the care referendum last March, ultimately had “no bearing” on the proceedings and does not dictate the payment of a carer’s allowance.
Article 41.2, whose potential effects were widely debated in the run-up to the referendum, says the State shall “endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
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Giving the court’s main judgment, Mr Justice Maurice Collins said the article imposes an “imperfect obligation” on the State and “simply does not provide a justiciable standard” sufficient to grant any legally enforceable right to State support.
He said the article’s effect is “simply to require the State [...] in its policies and laws to seek to support the right of mothers, as a class, not to be obliged to work outside the home”.
“It does not commit the State to the provision of any particular form or level of support or giving individual mothers any legally enforceable right to support from the State,” he said.
In any event, he said, the woman in this appeal was not obliged “by economic necessity” to work outside the home.
The mother effectively provides 24-hour care at home to her adult son who has significant developmental disabilities, hyperactivity and serious behavioural issues. 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.
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.
She argued unsuccessfully in the High Court and Supreme Court that the Minister for Social Protection was obliged to introduce regulations under section 186(2) of the Act that would entitle her to the full allowance and effectively dispense with the means test requirement.
The Minister’s failure to do so breached her constitutional rights, including to equal treatment and under article 41.2, she claimed.
In a judgment on Tuesday, the Supreme Court held that the High Court’s Ms Justice Niamh Hyland was correct to conclude that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.
He was unpersuaded by the contention that the carer’s allowance scheme is “under-inclusive”.
Mr Justice Collins noted the judgment resolves the legal challenge to the carer’s allowance regime but “does not of course foreclose public debate on whether that regime requires reform”. Nor does it preclude the Government from taking steps it considers appropriate to address the issues raised in this case, he said.
Chief Justice Donal O’Donnell, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley and Mr Justice Séamus Woulfe agreed with his decision.
In a separate, short judgment, with which Mr Jusice Charleton concurred, Mr Justice Woulfe said the “inexorable logic” flowing from a recent Supreme Court decision is that “only a married woman is entitled to rely” on article 41.2 of the Constitution.
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