The Supreme Court will rule today on a significant appeal over the refusal of the maximum carer’s allowance to a mother caring full-time at home for her profoundly disabled son.
The issues in the appeal, described as of “systemic importance” for carers of severely disabled children, 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 last March.
Under Article 41.2, the State recognises that woman’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”.
The 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.
The appellant cares full-time at home for her 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.
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 Heather Humphreys, Ireland and the Attorney General, the woman argued she was entitled to the maximum allowance.
She claimed the minster is legally obliged to make regulations which would result in her receiving the maximum payment and the failure to do so breached her constitutional rights, including 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. Caring for her son is “enormously demanding” and the reduced allowance caused “significant personal and financial strain” to the woman as his full-time carer and to the family unit, the judge said.
The High Court’s main conclusion was 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 a 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 held.
The woman’s lawyers secured a “leapfrog” appeal against the High Court decision, one directly to the Supreme Court because of the importance of the issues raised.
In a determination agreeing to hear the appeal, a panel of three Supreme Court judges said it raised issues “of systemic importance for the carers of severely disabled children”.
It 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, the judges said.
Article 41.2 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 added.
After the appeal was heard last April, judgment was reserved by the five-judge court. Its decision will be given on Tuesday morning.
