Robert Donnelly and Henry Donnelly (A Minor Suing by his Father and Next Friend Robert Donnelly v The Minister for Social Protection, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Murray
• Judgment Date: 21 May 2021
• Neutral Citation: [2021] IECA 155
• Year: 2021
• Docket Number: Court of Appeal Record No. 2018/296

Between:

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

Applicants/Appellants

and

The Minister for Social Protection, Ireland and The Attorney General

Respondents

[2021] IECA 155

Noonan J.

Haughton J.

Murray J.

Court of Appeal Record No. 2018/296

High Court Record No. 2017/464 JR

THE COURT OF APPEAL

CIVIL

Domiciliary Care Allowance – Constitutionality – Compatibility – Appellants 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 complaint of the appellants, the Donnellys, arose from the exclusion from Domiciliary Care Allowance (DCA) of children resident for more than specified periods of time in a hospital. The second appellant was so resident in a hospital at the times relevant to this action. That exclusion, the appellants said, created an unjustifiable discrimination against them when their position was compared with that of the parents of children (and/or of the children themselves) where the child is being cared for at home. In consequence, they said, the provisions providing for that exclusion are contrary to Article 40.1 of the Constitution and/or to the guarantee of non-discrimination contained in Article 14 of the European Convention on Human Rights, having regard to Article 8 of the Convention and/or Article 1 of the First Protocol thereto. The High Court (Binchy J) rejected the challenge ([2018] IEHC 421). The appellants appealed to the Court of Appeal against that decision.

Held by Murray J that because the second appellant was in hospital at the relevant time at least some of his care was provided by a public institution, and all of his maintenance and all of his medical treatment were funded by the State. Murray J noted that when the parents of the child were not in a position to attend upon him in the hospital, it was the State which was responsible for his care. Murray J held that the child at home and the child in hospital are in distinct positions when it comes to the funding of their care. Murray J held that this difference between the applicants and the comparator was relevant to a decision made in the allocation of benefits and allowances from public funds. Moreover, even though the first appellant was providing care in hospital and the comparator parent providing care at home, the Court had to have regard in reviewing legislation providing for benefits and allowances from public funds to the legislative choice made by the Oireachtas as to who should and who should not obtain such supports. Therefore, while there were similarities between the position of the appellants and the comparator, Murray J held that the reason they were treated differently in connection with the provision of DCA was not arbitrary or capricious and was reasonably capable of supporting that difference of treatment. For similar reasons, Murray J held that the appellants’ claim for relief under the provisions of the European Convention on Human Rights Act 2003 must fail. Murray J held that the decision in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, upon which reliance was placed by the appellants in these proceedings and in which the United Kingdom Supreme Court determined that the withdrawal from the claimant there of the Disability Living Allowance provided for under the law of that jurisdiction was, by reason of a similar exclusion, contrary to the European Convention on Human Rights was rooted in the evidence in that case which disclosed that the categorisation provided for under the law there was not supported by the facts. Murray J held that there was no equivalent evidence in this case establishing that this was so in Ireland’s jurisdiction.

Murray J’s provisional view was that the Court should make an order for the payment by the respondents of a contribution to the costs of the appellants; that contribution should equate to 50% of the costs of the appeal. Murray J believed that no order should be made as to the costs of the High Court proceedings.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 21 ^st of May 2021

The issue

1 . This case concerns Domiciliary Care Allowance (‘DCA’), a benefit provided for in the Social Welfare Consolidation Act 2005, as amended (‘SWCA’). DCA may be paid on a monthly basis in respect of a child who has a severe disability requiring continual care in excess of that normally needed by a child of the same age. The second named applicant (‘HD’) is a child falling within this description. The benefit is payable to the person providing for the care of the child (a ‘qualified person’). HD's father, the first named applicant (‘RD’), fulfils this condition vis a vis HD.

2 . The applicants' complaint arises from the exclusion from DCA of children resident for more than specified periods of time in a hospital. HD was so resident in a hospital at the times relevant to this action. That exclusion, the applicants say, creates an unjustifiable discrimination against them when their position is compared with that of the parents of children (and/or of the children themselves) where the child is being cared for at home. In consequence, they say, the provisions providing for that exclusion are contrary to Article 40.1 of the Constitution and/or to the guarantee of non-discrimination contained in Article 14 of the European Convention on Human Rights, having regard to Article 8 of the Convention and/or Article 1 of the First Protocol thereto.

3 . The reason the applicants say that the provision is thus discriminatory is simple. Even though HD was, at the times relevant to these proceedings, resident in a hospital they say that RD together with his wife provided constant care to him for between 8 and 12 hours a day, 7 days a week. Accordingly, they contend, the provision treats them differently from the parents and carers of a similarly positioned child who is cared for at home, without there being any rational, proportionate or objective justification for this distinction.

4 . Binchy J., ( [2018] IEHC 421) while rightly expressing great admiration for the first named applicant and his wife having regard to the remarkable efforts they make in the care of their child, felt compelled to reject this challenge. This is the applicants' appeal against that decision.

The facts

5 . HD suffers from a number of serious medical conditions. He was born with Down Syndrome and had persistent tracheomalacia which caused cardio respiratory arrest, ultimately requiring a tracheostomy, the insertion of a PEG feeding tube and a Hickman line. As a result, HD required almost permanent hospitalisation from his birth in June 2015 until his discharge from hospital in November 2017.

6 . HD's family reside in County Offaly. Nonetheless, while HD was in hospital in Dublin RD provided daily care to him. To that end RD bathed, fed and delivered medication to HD. He administered to him trachi care, physiotherapy and engaged in physical and sensory activities with him. He undertook social development skills programmes, motor skills development programmes, together with daily speech and language therapy. He attended medical meetings and case conferences pertaining to HD and received training relevant to his ongoing medical care.

7 . In order to do this, RD gave up his position of employment and for five days a week stayed in a residence adjacent to the hospital provided by a charitable organisation. HD's mother assisted with his care, usually on a Thursday, Saturday and Sunday. She was, during the remainder of the week, caring for other children in the family without RD's assistance.

8 . The undisputed evidence is that while HD's medical care was provided by his medical team, his parents were expected to provide care for him. Kim Murray, a social worker attached to the Oncology Haematology and Cardiology Department of the hospital wrote on 27 June 2017 in the following terms:

‘During prolonged hospitalisation parents are required to provide consistent emotional warmth and to respond to the cognitive and emotional need of the child. Mr. & Mrs. Donnelly were advised by the Multi-Disciplinary team that one parent was required to provide daily care for the duration of his admission, not to provide such care is considered neglect. Mr. Donnelly provided daily care for his son, Henry, for the duration of his treatment.”’

9 . HD was discharged from hospital in November 2017 and, as of the date of the hearing of this appeal, resided at home with his family.

Domiciliary Care Allowance

10 . DCA was originally introduced in 1973 by ministerial circular and is now governed by Chapter 8A of the SWCA. That Chapter was introduced by way of amendment to SWCA by s. 15 of the Social Welfare and Pensions Act 2008. The relevant provisions for the purposes of these proceedings are ss. 186B, 186C(1), 186D and 186E.

11 . The effect of these provisions is that the entitlement to DCA (which is not means tested) is conditioned in a number of respects. Insofar as relevant to this case, these are as follows. First, the child must have 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 (s. 186C(1)(a)). Second, the level of disability of the child must be such that the child is likely to require full time care and attention for at least 12 consecutive months. These two conditions are met in this case.

12 . Third, the child must normally reside with the qualified person, and the qualified person must ‘ provide[ ] for the care of the child’. The legislation does not, it might be noted, condition the entitlement by...