Donnelly v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 04 July 2022
• Neutral Citation: [2022] IESC 31
• Court: Supreme Court
• Docket Number: Record no. S:AP:IE:2021:000068

Between/

Robert Donnelly and Henry Donnelly (A Minor Suing by His Father and Next Friend Robert Donnelly)

Appellants

and

The Minister for Social Protection, Ireland and The Attorney General

Respondents

and

The Irish Human Rights and Equality Commission

Amicus Curiae

[2022] IESC 31

O'Donnell C.J.

MacMenamin J.

Dunne J.

O'Malley J.

Baker J.

Record no. S:AP:IE:2021:000068

THE SUPREME COURT

Social welfare payment – Eligibility – Discrimination – Appellants challenging legislation that excluded the first appellant from eligibility for a social welfare payment in respect of the second appellant during a prolonged period when the second appellant was in hospital – Whether the appellants had been unlawfully discriminated against

Facts: The appellants challenged legislation that excluded the first appellant, Mr Donnelly, from eligibility for a social welfare payment, Domiciliary Care Allowance, in respect of the second appellant, his severely disabled son, during a prolonged period when the second appellant was in hospital. The challenge was based on the constitutional guarantee, enshrined in Article 40.1º, that “all citizens shall, as human persons, be equal before the law”. The appellants contended that they had been unlawfully discriminated against as compared to families who were in a similar position but caring for a severely disabled child in their home. Apart from the constitutional issue, the appellants also argued that the exclusion was incompatible with the non-discrimination principle set out in Article 14 of the European Convention on Human Rights, read in conjunction with Article 8 (the protection of family and private life) and Article 1 of the First Protocol (protection of the right to peaceful enjoyment of possessions). Apart from an order of certiorari, the appellants sought a declaration that the relevant provisions are invalid having regard to the Constitution and a further declaration, pursuant to the European Convention on Human Rights Act 2003, that they are incompatible with the Convention. Like the constitutional claim, the Convention argument was based on an equality claim. Relief was refused in the High Court ([2018] IEHC 421) and the Court of Appeal ([2021] IECA 155). The appellants were granted leave to appeal to the Supreme Court by determination of the 29th July 2021 ([2021] IESCDET 89).

Held by O’Malley J that this was not a case in which the Court could make a finding of invalidity on the basis of obvious irrationality, or illegitimate discrimination, merely by considering the terms of the statute. In her view, there was no evidence in the case that could ground a finding that the exclusion was, as a matter of fact, irrational or illegitimate. She held that it was necessary for the appellants to adduce some evidence of the impact of the exclusion on the group of which they were members, in order to demonstrate that Mr Donnelly was not simply an unusual or “hard case” and that the group of parents who were eligible (i.e. those caring for children at home) was not likely to have greater needs than the group of parents caring for children in hospital. She held that once the Children’s Trust Tadworth/Contact a Family report was ruled inadmissible (as it had to be, under the rules of evidence) there was no such evidence. In her view the Convention claim must also fail. She held that, in principle, the measure in question is one that comes within the category of social and financial legislation, and the ground for the exclusion is not a suspect ground. She held that it does not, therefore, attract an intense level of review per se and the burden on a challenger is accordingly heavier.

O’Malley J 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. She therefore dismissed the appeal.

Appeal dismissed.

Judgment of Ms Justice Iseult O'Malley delivered the 4 ^th of July, 2022

Introduction

1 This appeal concerns 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 is based on the constitutional guarantee, enshrined in Article 40.1°, that “ all citizens shall, as human persons, be equal before the law”. That statement of principle is, of course, followed by what is known as the proviso: “This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”.

2 The appellants contend that they have been unlawfully discriminated against as compared to families who are in a similar position but caring for a severely disabled child in their home. The case involves consideration of the appropriate test to be applied to such a challenge, the allocation of the burden of proof and a potential question as to the appropriate choice of comparators. Apart from the constitutional issue, the appellants also argue that the exclusion is incompatible with the non-discrimination principle set out in Article 14 of the European Convention on Human Rights, read in conjunction with Article 8 (the protection of family and private life) and Article 1 of the First Protocol (protection of the right to peaceful enjoyment of possessions).

3 The payment in question is Domiciliary Care Allowance (“DCA”). This allowance was first introduced by way of a circular in 1973 and was later put on a statutory footing. As there is now no dispute as to the interpretation and application of the provisions relevant to this appeal, they may be conveniently summarised here.

4 DCA is payable in respect of a “qualified child”, being a child under 16 who has a severe disability requiring continual or continuous care substantially in excess of the care and attention normally needed by a child of the same age. The level of disability must be such that the child is likely to require full time care and attention for at least 12 consecutive months. The allowance, which is not means-tested, is payable to a “qualified person”, being a person with whom the child normally resides and who provides for the care of the child.

5 There is no dispute about the fact that Henry is a qualified child, who is severely disabled and suffers from a number of serious medical conditions, or about the fact that Mr. Donnelly has provided admirable parental care and is a qualified person when Henry is residing at home. Happily, that is currently the position and Mr. Donnelly is, at this point in time, in receipt of the allowance.

6 The issues between the parties arise from the fact that, when the proceedings were initiated, the allowance was not considered to be payable to Mr. Donnelly because Henry, who was born with several serious medical conditions, was in hospital for a lengthy period after his birth. The effect of ss. 186B and 186E(1) of the Social Welfare Consolidation Act 2005, as amended, is that in principle DCA is not payable when a child is resident in an “institution”. An “institution” is a “hospital, convalescent home or home for children suffering from physical or mental disability”, or ancillary accommodation. The definition includes “any other similar establishment” that provides residence, maintenance or care, if the cost of the child's maintenance there is met in whole or in part by or on behalf of the Executive or the Department of Education and Science. However, regulations made under the statute provide for some limited exceptions to the exclusion – in particular, DCA may be paid for up to 13 weeks in a 12-month period while a child is in hospital. A payment may be made at a reduced rate where a child is mostly resident in an institution but is at home for not less than two days a week.

7 The appellants consider that the legislation creates an unjustifiable discrimination against them in comparison with parents caring for severely disabled children in the home. They say that Mr. Donnelly and his wife did, as a matter of fact, provide care, for between eight and 12 hours a day, seven days a week, while Henry was in hospital, and that this level of care was considered necessary by the professionals treating him and liaising with the family. Mr. Donnelly gave up his employment for this purpose and the family thereby lost income.

8 Apart from an order of certiorari, the appellants seek a declaration that the relevant provisions are invalid having regard to the Constitution and a further declaration, pursuant to the European Convention on Human Rights Act 2003, that they are incompatible with the Convention. Like the constitutional claim, the Convention argument is based on an equality claim – it is not contended that the legislation breaches any right other than the right to equal treatment. A claim for a declaration that the appellants are resident together for the purposes of the Act and Regulations is not now pursued. There is, therefore, no dispute as to the meaning, effect or application of the legislation.

9 Relief was refused in the High Court (Binchy J. – see [2018] IEHC 421) and the Court of Appeal (judgment delivered by Murray J. – see [2021] IECA 155). The appellants were granted leave to appeal to this Court by determination of the 29 ^th July 2021 (see [2021] IESCDET 89).

The factual background

10 The material facts of the case, insofar as they relate to the individual position of the appellants, are not in dispute. They are fully set out in the judgment of Binchy J. and need only be summarised here. Henry was born with Down Syndrome in June 2015 and has suffered from other serious medical conditions, which are listed in the judgment as recurrent aspiration, oral aversion, gastro-oesophageal reflux,...