Case Report G0151: BM And JM (A Minor Suing By His Mother And Next Friend BM) v Chief Appeals Officer, Social Welfare Appeals Officer,  Minister For Social Protection, Ireland and The Attorney General [2024] IESC 51 

Title of Payment:  Carer’s Allowance  

Date of Final Decision: 12 November 2024 

Keywords: Carer’s Allowance; means test; reduced rate; classes of carers; constitutional challenge; Article 41.2 and the role of mothers in the home 

Organisation who represented the Claimant: N/A  

Casebase No. G0151 

Case Summary:  

This case concerned judicial review proceedings, where BM and JM (the “Applicants”) challenged the payment of Carer’s Allowance to BM at a reduced rate, pursuant to the Social Welfare Consolidation Act 2005 (the “2005 Act”).  

BM is the mother and carer of JM and has been a recipient the Carer’s Allowance since 2007. BM began to reside as a couple with JM’s father, which meant that her weekly means are assessed by reference to her own means and JM’s father’s means, so as to reduce the rate of Carer’s Allowance payable to her. The Applicants challenged the payment of Carer’s Allowance to BM at a reduced rate and asserted an entitlement to its payment at the full scheduled rate. BM asserted that having regard to JM’s profound dependence on her, and the corresponding commitment that being his full-time carer demands of her, it was highly unjust that she should receive anything less than the full rate of Carer’s Allowance. In particular, the allowance payable to her has been reduced by reference to her own means and not the means of her partner.   

The High Court dismissed the Applicants’ application and Hyland J held that the provisions of section 186(2) of the 2005 Act were permissive and conferred a power on the Minister rather than a duty to make regulations increasing the level of allowance payable.  

The High Court granted leave to appeal directly to the Supreme Court in respect of the following two issues:  

1. Whether the Minister for Social Protection (the “Minister”) is under any obligation under section 186(1) and section 186(2) of the 2005 Act to make regulations which would dispense with the means-tested calculation of carer’s payment?  

2. The extent (if any) to which Article 41.2 of the Constitution has any bearing on the proceedings and whether Hyland J was correct to state that Article 41.2 of the Constitution cannot be regarded as dictating the level at which the State must provide a carer’s allowance or otherwise mandating the making of regulations by the Minister under section 186(1) of the 2005 Act.  

Key Conclusions:  

• The entitlement to Carer’s Allowance is subject to reduction (or exclusion) on the basis of a uniformly applicable prescribed means test.  

• The Minister has a power but is not under any duty to make regulations to provide for two classes of Carer for the purposes of means testing of Carer’s Allowance under Chapter 8 of the 2005 Act.  

• With respect of Article 41.2 of the Constitution, significant financial support is already being provided to BM and JM. The payment of a reduced rate of Carer’s Allowance to BM does not engage Article 41.2 which does not preclude the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long-term care to a profoundly dependent child in the home. It does not require that a sub-set of carers be treated preferentially or be subject to more favourable rules than other carers.  

Relevant Legislation: 

• The Social Welfare (Consolidation) Act 2005, namely Chapter 8 of the 2005 Act; section 186(1) and section 186 (2) 

• Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (SI 142/2007) 

• Article 41.2.2 of the Constitution  

Key Arguments:   

The Applicant argued:  

1. The Minister acted unlawfully in failing to make regulations under section 186(2) of the 2005 Act, which would (or might) provide for payment of Carer’s Allowance at the scheduled rate to BM and other similarly situated persons.  

Section 186(2) clearly contemplates that there might be a category of recipients who ought to receive payment of Carer’s Allowance at the full rate, irrespective of means, and provides the Minister with power to make regulations to that effect. The ‘class of classes of person’ are carers whose caring commitment significantly exceeds 35 hours per week, who face a life-long care commitment and who, as a result, have no prospect of ever being in the position to take up employment.  

2. Payment of a reduced rate of Carer’s Allowance to BM is inconsistent with the State’s obligations under Article 41.2 of the Constitution. Article 41.2  provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” 

The Respondents argued that what is now section 186(2)(b) of the 2005 Act was enacted so as to enable the Minister to make regulations addressing any difficulties that may arise in the transition from the previous regime, the Prescribed Relatives Allowance (PRA), which was not means tested.  

Decision of the Supreme Court:  

Issue 1  

The Supreme Court held that the Applicants’ contention that section 186(2) of the 2005 Act requires the Minister to make regulations the effect of which would be to provide for two classes of carer was unpersuasive. On the face of section 186(2), the Minister had been given a broad and largely unbounded power to dispense with and/or modify the application of statutory rules relating to the means test for Carer’s Allowance, for the benefit of an unspecified class or classes of carer. The Court held that the Minister has a power, but is not under any duty, to make regulations providing for the matters in section 186(2).  

The Supreme Court acknowledged the remedial nature of the 2005 Act, so as to encourage and support the provision of essential care, in a residential setting, to persons having such a disability as to require full-time care and attention. However, it was held that recognition of the 2005 Act as a remedial statute does not alter the interpretative exercise that the Court must undertake.  

It was noted that the use of the word “may” in section 186(2) of the 2005 Act could indicate that the power is truly discretionary rather than mandatory in character. The Court held that the wider statutory context does not provide any support for the Applicants’ contention that section 186(2) should impose a mandatory obligation on the Minister. It was noted that the Oireachtas has in Chapter 8 set out a detailed scheme for the payment of Carer’s Allowance, and that it would not appear to make any sense for the Oireachtas simultaneously to legislate to impose a duty on the Minster to make regulations departing from that carefully delineated statutory scheme  by dispensing with or relaxing the application of the rules relating to means. The Court agreed with Hyland J’s conclusion that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.   

Issue 2 

It was held that nothing in Article 41.2 of the Constitution precludes the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long term care to a profoundly dependent child in the home, or requires that sub-set of carers be treated preferentially or to be subject to more favourable rules than other carers (as would be the case if the general means testing regime did not apply, or apply in the same way, to them.  

Collins J held that it appears that Article 41.2 has generally been understood to apply to the marital family only, which Woulfe J expressed the view in his concurring judgement. It was held that no court has ever held that Article 41.2 of the Constitution extends to a legally enforceable duty to provide financial support to mothers in respect of their work in the home. It was held that BM has not been obliged to work outside the home and instead she has been and is being supported in staying at home to care for JM.  

Date of final Decision: 12 November 2024 

Observations: 

The judgement provides clarity on the entitlement to Carer’s Allowance under the 2005 Act. The rate of Carer’s Allowance payable will continue to be calculated using a uniformly applied means test, as prescribed by statute (and set out 2005 Act and the related regulations). The Minister is not permitted to derogate from the Carer’s Allowance rates prescribed by statute despite the full-time demands that carers may face.   

The effect of Article 41.2.2 of the Constitution simply requires that the State through its policies and laws seeks to support the rights 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.  

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