B.M. and Another v Chief Appeals Officer and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 21 June 2023
• Neutral Citation: [2023] IEHC 359
• Court: High Court
• Docket Number: Record No. 2022/219JR

Between

BM and JM (A Minor Suing by His Mother and Next Friend BM)

Applicants

and

Chief Appeals Officer

and

Social Welfare Appeals Office

and

Minister for Social Protection

and

Ireland

and

The Attorney General

Respondents

[2023] IEHC 359

Record No. 2022/219JR

THE HIGH COURT

JUDGMENT of Ms. Justice Hyland of 21 June 2023

Summary

1 The applicants' challenge is directed to an alleged failure on the part of the Minister for Social Protection to make regulations under the Social Welfare Consolidation Act 2005 (the “2005 Act”) varying the current rules on entitlement to carer's allowance, in particular in relation to the application of a means test to that entitlement. The first applicant is a full time carer of her son JM, who was born in 2006. She receives a reduced rate of carer's allowance due to the application of the means test to her and her partner's income.

2 Having analysed s.186(2) of the Act, I am satisfied that the Minister has an entitlement but not an obligation to make regulations thereunder. The Minister has chosen not to exercise her power to date. That is not unlawful given the permissive nature of the section. Accordingly, although I have a great deal of sympathy for the first applicant, given the onerous nature of her caring responsibilities having regard to JM's medical and behavioural issues, I cannot agree with her contention that the Minister has acted unlawfully in not making regulations under s.186(2).

Facts

3 The first applicant is the mother, and carer, of the second applicant. JM is a young man who has Down's syndrome and epilepsy and epileptic seizures. He suffers from autism spectrum disorder (borderline) and developmental delay. He suffers from hypothyroidism. He suffers from hyperactivity behavioural issues, including repetitive head banging, a condition that must be deeply distressing for JM and his family. He requires a head brace to protect him from injury. His sleep is chronically poor, he cannot sleep a full night and he constantly wakes during the night. He is on a significant amount of medication, but this has unfortunately not addressed his sleep or behavioural issues. Counsel for the applicants indicated that absent the time JM is in a day care setting, the first applicant is essentially required 24 hours a day, including at night-time, having regard to the nature of her son's condition.

4 I am quite satisfied from the evidence that it is enormously demanding caring for JM and that the reduction of the full rate of carer's allowance by €85 per week has had a profound adverse effect on the first applicant and causes significant personal and financial strain to her as JM's full time carer, and to her family unit. She has no means of her own or in her own right and she cannot seek or obtain employment or earn an income because of her commitments as JM's full time carer.

5 The first applicant had been receiving one parent family payment and half rate carer's allowance. When she ceased to receive one parent family payment, the Department of Social Protection re-rated her carer's allowance to the full rate but then reduced it on the basis of her means and decided she was entitled to a weekly amount of €84 plus the increase for qualified children of €22.50. At the time, the full amount a carer could obtain under the terms of the 2005 Act as amended and the accompanying regulations was €219, not including the allowance for the additional child. The first applicant appealed that decision. On 10 May 2021 the Appeals Officer rendered a decision under s.317 of the 2005 Act. The first applicant sought to review that decision. The decision challenged in these proceedings is that of the first respondent of 21 January 2022 under s.318 of the 2005 Act declining to review the decision of the Appeals Officer.

6 By his decision of 10 May 2021, the Appeals Officer determined that, based on the applicant's means as calculated under the Rules contained in Part 5 of Schedule 3 to the 2005 Act, the first applicant was not entitled to the full rate of carer's allowance, but rather at a rate that reflected her means. Her entitlement was determined in the following way. First, her means were determined to be an amount of €848.16 per week, the income from employment of her partner, JM's father, with whom she and JM live. A maintenance payment from JM's father to her of €100 a week was disregarded, as she and JM's father were living together as a couple. After the application of a disregard amount of €665, prescribed by S.I. 142/2007 (Consolidated Claims, Payments and Control) Regulations 2007 as amended (the “2007 Regulations”), the couple's weekly means were assessed at €183.16. BM's means were calculated as half that amount, a total of €91.58. By letter dated 16 June 2021, BM was informed that the allowance to which she was entitled was assessed at an amount of €134.00 per week, on the basis of assessed net means of €91.58 per week, with an increase for one qualified child of €22.50.

7 The Review Decision of the Chief Appeals Officer under s.318 of the 2005 Act declined to review the Decision of the Appeals Officer under s.317 of the 2005 Act, concluding that the Appeals Officer had not erred in fact or law in his interpretation and application of the 2005 Act.

Legislation

8 Carer's allowance is a non-contributory form of social assistance provided for under Part 3, Chapter 8 (ss. 179–186A) of the 2005 Act. It is subject to a means assessment. Section 179(1) of Part 3, Chapter 8, provides that:

“carer” means—

(a) a person who resides with and provides full-time care and attention to a relevant person, or

(b) a person who, subject to the conditions and in the circumstances that may be prescribed, does not reside with but who provides full-time care and attention to a relevant person.

“relevant person” means a person (other than a person in receipt of an increase of disablement pension under section 78 in respect of constant attendance) who has such a disability that he or she requires full-time care and attention, and who—

(a) has attained the age of 16 years, or

(b) is under the age of 16 years and is a person in respect of whom a payment under Chapter 8A of Part 3 is being made.

“weekly means” means, subject to Rule 1(1) of Part 5 of Schedule 3, the yearly means divided by 52”

9 Section 179(3) provides:

(3) For the purposes of this Chapter, means shall be calculated in accordance with the Rules contained in Part 5 of Schedule 3.

10 Section 179(4) of the 2005 Act stipulates how to interpret what it means for a “relevant person” to require full-time care. Section 180 provides:

“180. (1) Subject to this Act, an allowance (in this Act referred to as “carer's allowance”) shall, in the circumstances and subject to the conditions that may be prescribed, be payable to a carer.

(2) A carer shall not be entitled to an allowance under this section unless he or she is habitually resident in the State”

11 Section 181(1) provides for the scheduled rate at which Carer's Allowance shall be payable by reference to Part 1 of Schedule 4 to the 2005 Act, and provides for increases to the scheduled rate, inter alia, in respect of each qualified child.

12 Section 181(2) provides for the scheduled rate, or a reduced scheduled rate to be payable depending on the weekly means of the carer, as follows:

“(2) (a) A carer's allowance shall be payable where—

(i) the weekly means of the claimant or beneficiary do not exceed €7.60, at the scheduled rate, and

(ii) subject to paragraph (b), the weekly means exceed €7.60, at the scheduled rate reduced by €2.50 for each amount (if any) of €2.50 by which those weekly means exceed €7.60, any fraction of €2.50 in those weekly means being treated for this purpose as €2.50.

(b) Where the rate calculated under paragraph (a)(ii) at which, but for this paragraph, the carer's allowance would be payable is less than €2.50, the allowance shall not be payable.”

13 Part 5 of Schedule 3 contains a series of Rules for calculating the means of persons for the purpose of carer's allowance, and also of blind pension, widow's and widower's (non-contributory) pensions, guardian's payment (non-contributory) and one-parent family payment.

14 As noted earlier in this judgment, the essence of the applicants' case is that the Minister was obliged, but failed to, make regulations under s. 186(2). The text of s.186 is set out later in this judgment where I discuss the correct interpretation of same.

Part 5 of Schedule 3 to the 2005 Act

15 Rule 4(1) explains how to apply the means test. It provides, as relevant:

“(1) In the case of … a carer's allowance, the following apply when calculating the means of a person who is one of a couple living together:

(a) the means of the person shall be taken to be one-half of the total means of the couple;

(b) the person is deemed to be entitled to one-half of all property to which the person or the other member of the couple is entitled or to which the person and the other member of the couple are jointly entitled;

(c) for the purposes of this Rule, the means of each member of the couple shall first be determined in accordance with these Rules (each being regarded as an applicant for a pension or a pension at a higher rate or carer's allowance, as the case may be) and the total means shall be the sum of the means of each member as so determined;

(d) […]

16 Rule 4(3) provides:

“(3) In the case of carer's allowance, in calculating the weekly means of the couple (other than means derived from any benefit, pension, assistance, allowance or supplement under this Act or a social security payment payable under the legislation of another state), the amount that may be prescribed shall be disregarded.”

17 This is what is known as the “disregard” amount, and as may be seen from the decision of the Appeals Officer in this case, the relevant...