Donnelly v The Minister for Social Protection

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Binchy
• Date: 01 June 2018
• Docket Number: [2017 No. 464 J.R.]

IN THE MATTER OF THE CONSTITUTION OF IRELAND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

ROBERT DONNELLY

AND

HENRY DONNELLY (A MINOR SUING BY HIS FATHER AND NEXT FRIEND ROBERT DONNELLY)

APPLICANTS

AND

THE MINISTER FOR SOCIAL PROTECTION, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IEHC 421

Binchy J.

[2017 No. 464 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Domiciliary Care Allowance – Constitutionality – Compatibility – Applicants seeking Domiciliary Care Allowance – Whether ss. 186D(1)(a) and 186E of the Social Welfare Consolidation Act 2005 and Regulations 13 and 140C-E of S.I. 142 of 2007 are unconstitutional and/or incompatible with the European Convention on Human Rights Act 2003

Facts: The second applicant, Mr H Donnelly, was born on 18th June, 2015 and suffered from a number of medical conditions which required him to have instant and almost permanent hospitalisation, from his birth until November 2017. In July, 2016, his father, the first applicant, Mr R Donnelly, applied to the first respondent, the Minister for Social Protection, for payment of Domiciliary Care Allowance (DCA). His application was refused by the Minister on 6th April, 2017 on the grounds that the second applicant was not resident at the time with the first applicant. The first applicant requested a review of that decision in light of the significant time dedicated by the first applicant to the second applicant's care. By decision issued on 23rd May, 2017, the Minister declined to reverse his decision of 6th April, 2017. On 29th May 2017, the applicants obtained leave to issue proceedings before the High Court, whereby they sought the following reliefs: (1) an order of certiorari quashing the decisions of the Minister of 6th April, 2017 and 23rd May, 2017; (2) a declaration that ss. 186D(1)(a) and 186E of the Social Welfare Consolidation Act 2005 and such provisions of S.I. 142 of 2007 (inter alia Regulations 13 and 140C-E) (the impugned provisions) which prohibit the payment of DCA to the first applicant are unconstitutional on the grounds that, inter alia, the said provisions unlawfully discriminated against the applicants by treating them unequally before the law, respectively, with the parents of other severely disabled children and other severely disabled children, in an unjustified manner and are disproportionate, arbitrary and contrary to reason and fairness, insofar as the provisions of the said Act prohibited payment of a social welfare payment intended for their benefit; (3) a declaration, pursuant to s. 5 of the European Convention on Human Rights Act 2003 that the impugned provisions are incompatible with the said Act on the grounds that DCA is within, inter alia, the scope or ambit of Article 1 of Protocol 1 and Article 8 of the said Act, and therefore must be administered without discrimination on any of the grounds identified in Article 14 of the said Act, such as the second applicant's "other status" as a severely disabled child, and that s. 186E of the 2005 Act unlawfully discriminated against the second applicant by denying him and his family the benefit of DCA because he required lengthy hospital inpatient treatment, while granting it to those severely disabled children who do not require hospitalisation; (4) alternatively, a declaration that the second applicant is resident with Mr Donnelly for the purposes of the 2005 Act and S.I. 142 of 2007 (inter alia Regulations 13, 140C-E) and/or that the said provisions are unconstitutional, in the premises that there is an unconstitutional lacuna. No case was made impugning the manner in which the decisions of 6th April, 2017 and 23rd May, 2017 were made by the Minister. The applicants' case was advanced entirely upon the bases that the impugned provisions are unconstitutional and/or incompatible with the 2003 Act.

Held by Binchy J that there was a justification for the disparity in treatment i.e. that the State is entitled to take measures to avoid the potential duplication of maintenance of an eligible child. Binchy J held that, citing MacMathúna v Attorney General [1995] 1 IR 484, once a justification for a disparity arises, the court cannot interfere by seeking to assess what the extent of the disparity should be; having arrived at that conclusion, the court had no further role in adjudicating upon the merits of the impugned provisions. Binchy J held that the best that the Oireachtas can do is to try and strike a balance and if it endeavours to do so in a reasonable, objective and proportionate manner then the measures that it takes will not amount to a contravention of the rights conferred by Convention. Binchy J held that the impugned provisions pass this test and that the application for a declaration of incompatibility must be dismissed.

Binchy J held that he would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr Justice Binchy delivered on the 1st day of June, 2018

1 The second named applicant, whom I shall refer to hereafter as Henry, was born with Down Syndrome on 18th June, 2015 and he has, from birth, suffered from a number of medical conditions which required him to have instant and almost permanent hospitalisation, very often in an intensive care unit, from his birth until November 2017. In July, 2016, the first named applicant, Mr Donnelly, applied to the first named respondent (the 'Minister') for payment of Domiciliary Care Allowance ('DCA'). This is a benefit which is payable to the parent of a child, with whom that child is resident, where the child concerned has a severe disability and requires continuous care and attention substantially in excess of that required by a child of the same age. Mr Donnelly's application was refused by the Minister on 6th April, 2017 on the grounds that Henry was not resident at the time with Mr Donnelly. Through his solicitors, Mr Donnelly requested a review of that decision in light of the very significant time dedicated by Mr Donnelly to Henry's care. By decision issued on 23rd May, 2017, the Minister declined to reverse his decision of 6th April, 2017. On 29th May 2017, the applicants obtained leave to issue these proceedings, whereby they seek the following reliefs:-

'(1) An order of certiorari quashing the decisions of the Minister of 6th April, 2017 and 23rd May, 2017.

(2) A declaration that ss. 186D(1)(a) and 186E of the Social Welfare Consolidation Act 2005 (as amended) (the 'Act of 2005') and such provisions of S.I. 142 of 2007 ( inter alia Regulations 13 and 140C-E), (all of which together I shall hereafter refer to as the 'impugned provisions') which prohibit the payment of DCA to Mr Donnelly are unconstitutional on the grounds that, inter alia, the said provisions unlawfully discriminate against the first and second named applicants by treating them unequally before the law, respectively, with the parents of other severely disabled children, other severely disabled children, in an unjustified manner and is disproportionate, arbitrary and contrary to reason and fairness, insofar as the provisions of the said Act of 2005 prohibits payment of a social welfare payment intended for their benefit.

(3) A declaration, pursuant to s. 5 of the European Convention on Human Rights Act 2003 (the 'Act of 2003') that the impugned provisions are incompatible with the said Act on the grounds that DCA is within, inter alia, the scope or ambit of Article 1 of Protocol 1 and Article 8 of the Act of 2003, and therefore must be administered without discrimination on any of the grounds identified in Article 14 of the Act of 2003, such as Henry's 'other status' as a severely disabled child and; that s. 186E of the act of 2005 unlawfully discriminates against Henry by denying him and his family the benefit of DCA because he requires lengthy hospital inpatient treatment, while granting it to those severely disabled children who do not require hospitalisation.

(4) Alternatively, a declaration that Henry is resident with Mr Donnelly for the purposes of the Act of 2005 and S.I. 142 of 2007 ( inter alia Regulations 13, 140C-E) and/or the said provisions are unconstitutional, in the premises that there is an unconstitutional lacuna.'

2 Leave to issue these proceedings was granted upon the following grounds:-

'(1) The impugned provisions breach Henry's constitutional right to equal treatment before the law pursuant to Article 40.1 of the Constitution. The applicants also enjoy personal rights under Articles 40.3 and 42 of the Constitution. Statutory provisions affecting rights under all of the aforementioned articles must be proportionate and;

(a) be rationally connected to the object and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible; and

(c) be such that their effects on rights are proportionate to the objective.

While the State is entitled to restrict access to its social welfare system, it must not do so in the manner which has the effect of wholly denying an Irish citizen child the benefit of a social welfare payment intended to contribute to his care and for his wellbeing. The impugned provisions permit the exclusion of payment of DCA in respect of Henry in a manner which constitutes an unjust attack on his rights, being arbitrary and contrary to reason and fairness. Further, the denial of DCA is contrary to the best interests of Henry.

(2) DCA constitutes a possession for the purposes of Article 1 of Protocol 1 of the ECHR Act 2003. DCA is also, pursuant to Article 8 of the ECHR Act 2003, the means by which States demonstrate their respect for family life and rights of families. Contrary to those articles, the impugned provisions permit the exclusion of payment of DCA in respect of Henry to Mr Donnelly. Henry is entitled to equal treatment with other disabled children (other status) who are not in hospital. There are insufficient reasons justifying the difference of...