Social Welfare Appeal G0127: Domiciliary Care Allowance

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 4 July 2022

Keywords: Domiciliary Care Allowance; Social Welfare Payment; Discrimination; Irish Constitution; European Convention on Human Rights.

Organisation who represented the Claimant: N/A

Casebase no: G0127

Case Summary:

The case is that of Donnelly & Anor v Minister for Social Protection & Ors [2022] IESC 31.

This case concerned a challenge to legislation that excluded the first named appellant (“Mr. Donnelly”) from eligibility for a social welfare payment in respect of his severely disabled son, Henry, the second named appellant during a prolonged period when Henry was in hospital. The challenge was brought, under Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights, to a decision of the Minister of Social Protection and to certain provisions of the Social Welfare Consolidation Act 2005. The appellants argued that they have been unlawfully discriminated against as compared to families who are in a similar position but caring for a severely disabled child at home. The payment in question is the Domiciliary Care Allowance (“DCA”).

Henry was born with Down syndrome in June 2015 and has suffered with multiple other serious medical conditions. As a result, he was hospitalised for all the time from his birth until November 2017. During the time he was in hospital, Mr. Donnelly gave up his employment. It is apparent from the evidence that the level of care provided to Henry by his parents during this time, while undoubtedly onerous, was to an extent expected by the hospital. Mr. Donnelly applied for the DCA in July 2016 and his application was refused. He sought an internal departmental review of the decision which came to the same conclusion. Henry was discharged home in late 2017 and Mr. Donnelly has been in receipt of the payment since.

Relief was refused in the High Court ([2018] IEHC 421). The Court of Appeal ([2021] IECA 155) affirmed the decision of the High Court. The appellants were granted leave to appeal to the Supreme Court by determination of the 29th July 2021 ([2021] IESCDET 89).

Key Conclusions: The Supreme Court concluded that the appellants had failed to discharge the burden of proving that the measure in question was either invalid having regard to the Constitution or incompatible with the Convention.

Relevant Legislation:

Social Welfare Consolidation Act 2005:

Sections:

186B.— In this Chapter—

‘institution’, means a hospital, convalescent home or home for children suffering from physical or mental disability or ancillary accommodation and any other similar establishment providing residence, maintenance or care where the cost of the child’s maintenance in that institution is being met in whole or in part by or on behalf of the Executive or the Department of Education and Science;

‘international organisation’ means an international intergovernmental organisation, including, in particular and without limiting the generality of the foregoing—

(a) the United Nations Organization and its specialist agencies,

(b) the institutions and agencies of the European Communities,

(c) the Council of Europe, and

(d) the Organisation for Economic Co-operation and Development;

‘qualified child’ has the meaning given by section 186C;

‘qualified person’ has the meaning given by section 186D.

186C.— A person who is under the age of 16 years (in this section referred to as ‘the child’) is a qualified child for the purposes of payment of domiciliary care allowance if—

(a) a medical practitioner has certified, in such manner as is prescribed, that—

(i) the child has a severe disability requiring continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age, and

(ii) the disability is such that the child is likely to require full-time care and attention for at least 12 consecutive months,

(b) the child—

(i) is ordinarily resident in the State, or

(ii) satisfies the requirements of section 219(2),

and

(c) the child is not detained in a children detention school as defined in section 3 of the Children Act 2001 .

186E.— (1) Subject to subsections (2) and (3), domiciliary care allowance is not payable for any period during which a child is resident in an institution.

186D.— (1) A person is a qualified person for the purpose of receiving domiciliary care allowance in respect of a qualified child if—

(a) the child normally resides with that person,

(b) that person provides for the care of the child, and

(c) at the date of the making of the application for domiciliary care allowance—

(i) that person is habitually resident in the State, or

(ii) the requirements of section 219(2) are satisfied in relation to that person.

(2) For the purposes of subsection (1)(a) the Minister may by regulation make rules for determining with whom a qualified child is to be regarded as normally residing.