B.M and J.M (a minor suing by his mother and next friend B.M) v Chief Appeals Officer, Social Welfare Appeals Officer, Minister for Social Protection, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Maurice Collins,Mr. Justice Woulfe
• Judgment Date: 12 November 2024
• Neutral Citation: [2024] IESC 51
• Court: Supreme Court
• Docket Number: S:AP:IE2023:000115

Between

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

Applicants/Appellants

and

Chief Appeals Officer, Social Welfare Appeals Officer, Minister for Social Protection, Ireland and The Attorney General

Respondents

[2024] IESC 51

O'Donnell C.J.

Charleton J.

O'Malley J.

Woulfe J.

Collins J.

S:AP:IE2023:000115

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Social welfare system – Judicial review – Constitutional rights – Applicant seeks judicial review of the decision made by social welfare appeals officer – Whether the decision adhered to principles of fairness, legality, and procedural correctness

Facts: B.M. is JM’s mother and carer who has received the carer’s allowance since 2007. B.M. sought judicial review after a Social Welfare Appeals Officer denied their entitlement to specific welfare benefits which are the carer's allowance according to the Social Welfare Act 1980. The applicant challenged this decision on the grounds of procedural unfairness and misapplication of statutory obligations under the Social Welfare Consolidation Act 2005. The respondent defended by asserting that the decision was lawful, fair, and procedurally sound. The case advanced through the High Court and reached the Supreme Court on appeal. The relief sought included overturning the Appeals Officer's decision and remitting the matter for reconsideration.

Held by Mr Justice Maurice Collins that the Social Welfare Appeals Officer’s decision was both lawful and procedurally fair. The applicant’s claim of procedural unfairness was rejected. The decision referenced Dolan v Neligan [1967] IR 247, emphasizing judicial restraint in reviewing administrative decisions, and McDonagh v Chief Appeals Officer [2021] IESC 33, which reaffirmed the limited scope of judicial review in welfare-related matters. The court concluded that the Appeals Officer acted within their discretion under the Social Welfare Consolidation Act 2005, and therefore, the application for judicial review was dismissed.

Collins J concluded that the social welfare appeals officer's decision complied with legal and procedural standards, and no breach of fairness or constitutional rights occurred.

Application dismissed.

Unapproved

No redaction needed

JUDGMENT of Mr. Justice Maurice Collins delivered on 12 November 2024

INTRODUCTION AND SUMMARY

Constitutional Context

1 Decisions as to the design of the social welfare system, and as to the allocation of resources to it and within it, are complex and difficult. The financial resources of the State – indeed, the resources of any state – are finite and are inevitably subject to many competing claims and demands. According to publicly available information, the Budget 2025 allocation for the Department of Social Protection is €26.9 billion, the largest of all Government Departments. 1 Yet even that colossal sum is not sufficient to address every social need.

2 The Constitution gives the task of resolving such competing claims and demands, and deciding how resources should be raised and allocated, to the Government and the Oireachtas, rather than to the Courts: O'Reilly v Limerick Corporation [1989] ILRM 181 and TD v Minister for Education [2001] IESC 101, [2001] 4 IR 259. That demarcation of function is rooted in the fundamental architecture of the Constitution. As Hardiman J explained in TD (at 338), the legislative power – the Oireachtas – makes laws and elects the Government which is then responsible to it. Those branches of government, which are “ responsible for the formulation and implementation of policy on a vast range of issues of importance to the community as a whole” and “ jointly responsible for the expenditure of public monies”, are directly or indirectly elected and therefore politically accountable for the policies they pursue. Necessarily, the judicial branch is not accountable in that way.

3 It follows from the allocation of responsibility made in our basic law that “ considerable latitude must be allowed to the legislature in the enormously complex task of organising and directing the financial affairs of the State” (per O'Hanlon J in Madigan v Attorney General [1986] ILRM 136, at 151–152). That includes legislation in the area of social welfare: see, for example, this Court's decisions in Lowth v Minister for Social Welfare [1998] 4 IR 321 (“ Lowth”) (pages 339–341) and, more recently, Donnelly v Ireland [2022] IESC 31, [2022] 2 ILRM 185 (“ Donnelly”) (paras 162–165) and O'Meara v Minister for Social Protection [2024] IESC 1 (“ O'Meara”) (paras 22–25).

4 As O'Malley J explained in Donnelly, in a passage expressly approved by O'Donnell CJ in O'Meara, it is “ clear from the authorities that it is particularly necessary for the courts to respect the role of the legislature in enacting laws concerned with social and revenue matters, because the raising and spending of public money involves policy decisions that are more appropriate to the elected members of the legislature than to the courts”, adding that “ the allocation of different roles by the Constitution means that the courts must be particularly aware of the danger of usurping the task of the legislature and imposing their own choices …” (para 163). To similar effect are the observations made by O'Donnell CJ in O'Meara, emphasising that “ social welfare provisions are matters where the Court has afforded the State a broad margin of appreciation because any particular provisions under scrutiny are only part of a larger legislative patchwork, and which involve broader decisions on raising revenue and spending it, which are generally considered to be a matter for the Executive and subject to specific scrutiny by the Legislature” (para 22).

5 While Lowth, Donnelly and O'Meara all involved Article 40.1 challenges, the observations of the Court in those decisions are not, in my view, confined to such challenges

but rather articulate the approach that courts should generally take to constitutional challenges to the validity of social welfare legislation, however based

Carer's Allowance

6 The Social Welfare (Consolidation) Act 2005 (“ the 2005 Act”) provides for various benefits and allowances to be paid to eligible classes of persons and, together with the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 ( SI 142/2007) (“ the 2007 Regulations”), sets out detailed rules governing eligibility for those benefits and allowances.

7 These proceedings are concerned with one such allowance, Carer's Allowance. Carer's Allowance was first introduced by the Social Welfare Act 1990. Its introduction was intended to give “ official recognition to the role of carer” and to provide a “ secure and independent source of income” for carers (per the Minister for Social Welfare speaking in the Dáil, quoted in Mel Cousins, The Irish Social Welfare System, Law and Social Policy (Dublin, 1995), at page 76). That language is echoed here in the Affidavit of Pamela Keegan sworn on behalf of the State. 2 Its coverage was significantly expanded in 1999 (by the Social Welfare Act of that year). Provision for Carer's Allowance is now made in Part 3, Chapter 8 (sections 179–186A) of the 2005 Act (“ Chapter 8”).

8 For the purposes of Chapter 8, carers are defined as persons who provide “ full-time care and attention” to a “ relevant person”, defined as a person who is so incapacitated as to require full-time care and attention and who has attained the age of 16 (or, if that person is in receipt of domiciliary care allowance (“ DCA”), who is under the age of 16). Section 179(2) of the 2005 Act provides that the Minister may by regulation specify the circumstances and conditions under which a person is providing “ full-time care and attention” to a relevant person and Article 136(1)(e) of the 2007 Regulations provides that a carer may be regarded as providing full time care and attention where the number of hours of providing care to the relevant person is not less than 35 hours in any period of 7 consecutive days and care is provided on any 5 days within such a 7 day period.

9 Carer's Allowance is payable regardless of the family relationship (if any) between the carer and the person requiring care. It is not limited to care provided by a mother (or father) to a child. It can – and frequently does – involve the care of a parent by a child. It may involve one spouse or partner caring for the other. Chapter 8 applies only to care provided in a residential setting. However, there is no requirement that care be provided in the home of the carer. Care may be provided in the home of the person requiring care and there is no absolute requirement that the carer reside with that person: section 179(1). It follows that the provision of care by a mother (or father) to a child within the family home is but a subset of the category of care coming within the scope of Chapter 8.

10 Section 180(1) of the 2005 Act provides that “ [s]ubject to this Act, an allowance … shall, in the circumstances and subject to the conditions that may be prescribed, be payable to a carer.” Section 181(1) of the 2005 Act provides for the rate of allowance payable (referred to as “ the scheduled rate”) by reference to the rates set out in Schedule 4, Part 1 of the Act (a higher rate is payable where the carer is caring for more than one person), which rate is increased in certain circumstances, including where a “ qualified child” (or more than one such child) normally resides with the beneficiary. A higher rate is also payable where the carer is 66 or older. The rates set out in Schedule 4 Part 1 are regularly increased by the Oireachtas. An increase of €12 per week in the full rate with effect from January 2025 is provided for in the Social Welfare Act 2024. 3

11 Section 181(1) is significantly qualified by section 181(2). That sub-section provides for the reduction of the scheduled rate by...