Wednesday, July 21, 2021

A father and son have lost their appeal over being refused a domiciliary care allowance over two and a half years while the boy, who has a serious medical condition, was in hospital.

The three judge Court of Appeal rejected arguments the refusal amounted to discrimination, contrary to the Constitution and the European Court of Human Rights, between the father and a parent caring for a similarly positioned child at home.

The allowance is a monthly payment for children under 16 with severe disabilities who require ongoing care.

Due to his condition, the boy was almost permanently in hospital for some 29 months from the time of his birth. He was then discharged and, at the time of the appeal, was living at home with his family.

Gave up job

His father gave up his job after the child became ill and he and/or his wife spent eight to ten hours daily with their son in the hospital. The child’s medical care was provided by the hospital and the parents were required to provide “consistent emotional warmth and to respond to the cognitive ad emotional needs of the child”.

The applicants took judicial review proceedings after the Department of Social Protection informed the father he did not qualify for the allowance while the boy was in an “institution” where his care was paid for with public funds.

The Minister for Social Protection, Ireland and the Attorney General disputed any discrimination and said payment of the allowance is based on a requirement the qualified child lives at home with their parents. The payment is made to recognise the additional obligations and expense placed on parents caring for their child at home, they said.

After the applicants lost in the High Court, they appealed.

Hospital

In the COA’s recently published judgment, Mr Justice Brian Murray said the matter had to be addressed in a context where the reason for the payment is the child’s disability and the reason for the father’s exclusion from the allowance is the extent of the disability is such the child is in hospital.

Because the boy was in hospital at the relevant time, at least some of his care was provided by a public institution and all the maintenance and medical treatment were funded by the State, he said.

When the parents were unable to attend the hospital, the State was responsible for his care.

None of this was necessarily the case when the child is at home with the effect “the child at home and the child in hospital are in distinct positions when it comes to the funding of their care.”

Public funds

That difference is relevant to a decision made in the allocation of benefits and allowances from public funds, he said.

Even though the father was providing care in hospital, and the comparator parent was providing care at home, the court must have regard, in reviewing legislation providing for benefits and allowance from public funds, to the legislative choice made by the Oireachtas as to who should, and should not, obtain such supports.

The court must exercise “very considerable caution” in “second-guessing” the Oireachtas’ judgment.

While there are similarities between the position of these applicants and the comparator, the reasons they are treated differently in connection with the provision of the allowance is “not arbitrary or capricious” and is reasonably capable of supporting the difference of treatment, he held.

For those and other reasons, he rejected the claim of discrimination contrary to Article 40.1 of the Constitution.

For very similar reasons, the claim of breach of the guarantee of non-discrimination in the ECHR must also fail, he ruled.

The judge proposed, because some issues raised were novel, important and difficult, that the respondents contribute half of the appellants costs of the appeal and each side pay their own costs in the High Court. If either side disagreed, they could make submissions seeking an alternative costs order.

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