Supreme Court Archives

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,

(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

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

(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.

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Social Welfare Appeal G0117

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 21^st May 2021

Keywords: Domiciliary Care Allowance; Refusal to revise a decision, Revised decision, Right to appeal to the Chief of Appeals Officer.

Organisation who represented the Claimant: KOD Lyons

Casebase no: G0117

Case Summary:

This case is that of Brigid Wilton McDonagh v. The Chief Appeals Officer and Minister for Social Protection [2021] IESC 33. The case concerned whether the refusal of a deciding officer to revise an earlier decision of a deciding officer constituted a new “decision” or “revised decision” so that the refusal would give rise to the right of the applicant to appeal to the Chief of Appeals Officer.

Ms McDonagh (The Applicant) is the primary carer of her child who has a diagnosis of learning/developmental difficulties. On the 10 June 2011, the applicant applied, pursuant to s.186(D) of the Social Welfare Consolidation Act 2005 as amended (2005 Act), to become a recipient of Domiciliary Care Allowance. On the 21^st September 2011, a deciding officer refused the applicant’s application pursuant to s.300(2)(b) of the 2005 Act.

The applicant was informed of her right to seek a review/revision of the decision under s.301(1) of the 2005 Act and her right to seek an appeal of the decision pursuant to s.311(1) of the 2005 Act. The applicant did not seek an appeal of the decision but after an interval of four and half years sought a revision of the decision by the deciding officer under s.301(1) of the 2005 Act on three separate occasions. On each occasion the application for a review was refused, the last of these refusals being issued on the 23^rd May 2017.

On the 12^th July 2017, the applicant’s solicitor wrote to The Chief Appeals Officer (the first-named respondent) seeking an appeal of the decision to refuse a revision of the decision. The first named respondent wrote to the applicant informing her there was no possibility to appeal to The Chief Appeals Officer as the 21-day appeal time limit for the decision made on the 21^st September 2011 had expired and there was no avenue to appeal to the Chief Appeals Officer where a deciding officer reviewed a decision but refused to revise the decision.

The applicant was subsequently granted leave to seek judicial review of the decision of the first named respondent and sought an order of certiorari quashing the decision of the first-named respondent and an order of mandamus compelling the first-named respondent to determine the appellant’s appeal. In doing so, she argued that a decision of a deciding officer refusing to revise an original decision constituted either a fresh “decision” or a “revised decision” under the legislation so that it gave rise to the right to appeal to the Chief of Appeals Officer.

The applicant’s arguments were rejected in the High Court and the reliefs sought were refused. The Court of Appeal affirmed the decision of the High Court, again rejecting the applicant’s arguments. The Supreme Court subsequently allowed the applicant’s appeal holding a decision of a deciding officer not to revise an original decision is a decision, just as a decision to revise is a decision and that as a result the applicant was entitled to appeal the decision not to revise her application for Domiciliary Care Allowance.

Key Conclusions: The refusal of a deciding officer to revise an earlier decision of a deciding officer is a decision that may be subject to appeal.

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Social Welfare Appeal G0110

This is one of two judgments delivered by the Supreme Court in the case of Petecel concerning the refusal of an application for Disability Allowance under the Social Welfare Consolidation Act 2005. This particular judgment deals with the substantive issue of the legal classification of Disability Allowance, as opposed to the appellant’s entitlement to seek judicial review. The procedural issue is addressed in the earlier judgment and is detailed in Casebase Report No. G0109.

The appellant was Catalin Petecel, a Romanian national who lawfully lived and worked in Ireland from 2008-11. He was diagnosed with MS (multiple sclerosis) in 2011 and travelled to Romania for treatment. He returned to the State briefly from February to April 2012 but otherwise has remained in Romania ever since. While there, his condition deteriorated to the point that he was physically unresponsive and being cared for full-time by his mother.

In 2016, Mr. Petecel applied through his legal guardian for Disability Allowance pursuant to section 210(1) of the 2005 Act. The deciding officer refused his application on the basis that he was not resident in the State. The appellant’s solicitors sought a review of that decision pursuant to section 301 submitting that Mr. Petecel was still habitually resident in the State, as his absences were for the purpose of receiving medical care. Furthermore, it was argued that Disability Allowance was a “sickness benefit” for the purpose of Article 3(1)(a) of EU Regulation 883/2004 and therefore “exportable”. The request for a revision was refused by a second deciding officer on 9^th June 2017.

Mr. Petecel sought to challenge the said refusal by way of judicial review seeking to quash the relevant decisions and obtain additional declaratory relief. The appellant grounded his leave application on two points. First, he submitted that the deciding officer had erred in finding the appellant was not habitually resident in Ireland. Second, he contended that the State had incorrectly categorised Disability Benefit as a non-exportable “special non-contributory benefit” and sought a preliminary reference to the Court of Justice of the European Union on that basis.

When the matter came before the Supreme Court, and having determined the procedural issue, O’Malley J. invited the parties to make further written submissions on the classification issue. She was particularly interested in two issues, namely the “rehabilitative work” aspect of the earnings disregard that applied in the means test for Disability Allowance and the relevant disqualification criteria. O’Malley J. was of the view that there were elements of sections 210 and 212 of the 2005 Act that possibly indicated there may have been a medical purpose to the overall conditions of eligibility attached to Disability Allowance at the time of Mr. Petecel’s claim and sought supplemental submissions on that basis. The Supreme Court concluded that Disability Allowance was a form of social assistance payment properly classified as a non-exportable “special non-contributory cash payment” within the meaning of Article 70(2) of Regulation 883/2004. The payment was not linked to any medical purpose. Accordingly, Mr. Petecel was not entitled to Disability Allowance and his appeal was dismissed.

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Social Welfare Appeal G0109

This is one of two judgments delivered by the Supreme Court in the case of Petecel concerning the refusal of an application for Disability Allowance under the Social Welfare Consolidation Act 2005. This particular decision deals with the procedural issue as to the appellant’s entitlement to seek judicial review in the absence of having exhausted the statutory appeals process. The substantive issue of the legal classification of Disability Allowance is dealt with in a later judgment as detailed in Casebase Report No. G0110.

Despite all aspects of the case being fully argued in the High Court, Barrett J. declined to consider the substantive issue raised in circumstances where Mr. Petecel has failed to exhaust the statutory appeals process. He found that the 2005 Act contained adequate remedies in the form of a de novo appeal to an appeals officer (section 311), a revision by the Chief Appeals Officer (section 318), and an appeal on a point of the law to the High Court (section 327). Even if it was inevitable that the case would end up in the High Court in some shape or form, Barrett J. was of the opinion that it should do so at the end of the appeals process.

The Court of Appeal was prepared to accept that judicial review was not preconditioned on engaging in a futile or pointless appeals process. Costello J. was of the view, however, that the issues of EU law raised by Mr. Petecel could be dealt by way of a reference to the High Court by the Chief Appeals Officer pursuant to section 306 of the 2005 Act or an ordinary appeal on a point of law. The Court was influenced by the fact that the High Court would have a broader jurisdiction in the context of a statutory appeal than in judicial review to find that the appellant was entitled to Disability Allowance.

Ultimately, the Supreme Court determined that the appellant was entitled to bring judicial review proceedings in circumstances where the question of the classification of Disability Allowance was not one which could be properly ventilated through the statutory appeals process. Further, it would not have been appropriate to bring an appeal on a point of law as the High Court’s jurisdiction in such matters is confined to the interpretation of statute. Acknowledging that the habitual residence might have been more appropriately addressed within the Departmental process, O’Malley J. held that this did not act as a barrier to judicial review.

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Social Welfare Appeal GO108

This is a joint decision in respect of two cases that both address the question of when a parent of as of yet undetermined immigration status is entitled to a child benefit payment in respect of a child who either is an Irish citizen or holds refugee status.

Ms. Agha and Osagie each applied for child benefit while living in Direct Provision as they awaited the outcome of their respective requests for permission to remain in the State, The said applications were refused on the basis that absent a legal right to reside in the State they were not considered “habitually resident” for the purposes of s.220 of the Social Welfare Consolidation Act 2005. Following the regularisation of their immigration status, further applications for child benefit were made by both applicants which the Department of Social Protection acceded to and backdated to the date they were granted permission to remain. They then sought to have child benefit further backdated to the date that the relevant child became a “qualified child” under s.219 of the 2005 Act. The Department refused to do so.

The applicants, on behalf of their children, challenged the decision not to backdate the child benefit on the basis that it breached the equality provisions under Article 40.1 of the Constitution and EU Law.

In the High Court, both cases were unsuccessful with White J. holding that the restricting of child benefit to parents who were habitually resident in the State was not unconstitutional or contrary to EU law because it applies equally to Irish citizens and non-Irish citizens and the equality guarantee in the Constitution does not require identical treatment for all persons without recognition of difference of circumstances. Although for the benefit of children, child benefit was paid to parents, and the distinction between people lawfully in the State and people without permission to be here was a valid one that the Oireachtas was entitled to make.

The decision at first instance was overturned in the Court of Appeal. Hogan J. found that the State had not provided objective justification for withholding child benefit in respect of an Irish citizen regardless of Ms. Osagie’s immigration status and that constitutional equality was breached in the refusal to backdate payments. Insofar Ms. Agha’s application related to a child who was granted refugee status, child benefit entitlements accrued from the date that the relevant child became entitled to reside in the State. There could be no basis for withholding child benefit in respect of a qualified child simply because the person applying for the benefit on the child’s behalf did not have a regularised immigration status. To do so would be to disproportionately deny parents a payment designed for the benefit of children.

The State was ultimately successful in its appeal before the Supreme Court. Dunne J. held that the Court of Appeal had fallen into error by focusing on the children rather than considering the positions of their respective parents as the claimants of child benefit. The Court held that there was no requirement in EU law to backdate child benefit payments in the manner claimed and that the equality provisions were not breached in circumstances where the habitual residency requirements applied to all prospective applicants equally.

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