The State is obliged to increase the carer’s allowance given to a woman who provides a “profound” level of care to her adult son to the extent she cannot take up any employment, her lawyers have told the Supreme Court.
“My entire life is centred and structured around catering to [my son’s] needs and this will not and cannot change.,” the woman said in a sworn statement to the court.
The woman effectively provides 24-hour care at home to her son, who has significant disabilities. Due to her partner, the son’s father, earning €848 per week, she was assessed in 2021 as being entitled to €134 weekly. The son has since become entitled to receive a weekly disability payment.
In her appeal against the High Court’s dismissal of her claim, the woman contends the Minister for Social Protection was obliged to introduce regulations under section 186(2) of the Social Welfare Consolidation Act of 2005 that would entitle her to the full allowance.
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Failure to do so, she argues, breached her constitutional rights, including to equal treatment and under article 41.2, which references a woman’s duties in the home.
Article 41.2, which the electorate voted via referendum last month to maintain, says the State shall “endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
The woman’s senior counsel, Derek Shortall, said the article has received “such limited outing” in the Supreme Court, so there is no definitive determination as to what obligation it imposes on the State. However, he said the recent public approval it received in the referendum “has to mean something”.
Whether the article applies directly or by analogy, it “at a minimum” recognises that a mother’s work has a lot of meaning, he added.
Mr Shortall said carers only become entitled to the payment if they provide weekly care of at least 35 hours per week and are permitted to work for up to 18.5 hours per week.
However, he said his client is “not able to take up employment” due to the needs of her son.
The Minister is obliged to make regulations increasing her entitlement because the woman has to care so much above and beyond the minimum 35 hours and has no means of her own, he argued.
Arguing on behalf of the State, Gerard Durcan SC submitted that article 41.2 is “not centrally relevant” to the issues. The article has been in place for almost 90 years, yet he is not aware of any case where it has been successfully invoked in support of an argument that the State is obliged to provide something.
He added that while this does not mean such a scenario could not happen, the “very fact it has not happened in all that time, I think, does say something”.
Article 41.2′s “qualified protection” to women and mothers must be considered in the context of other provisions of the Constitution, particularly article 40.1, which holds that all citizens shall be held equal in law and the State shall not discriminate.
He submitted that conditions of the carer’s allowance “more than satisfy” any potential obligation imposed by article 41.2.
He rejected the claim that the Minister is “obliged” to make regulations widening the carer’s allowance. The relevant provision states the Minister “may” make such regulations, rather than “shall”, he said.
There is “nothing unlawful” about the means testing, and it is “perfectly reasonable” to have regard to the income of a cohabitant or spouse, he said.
Chief Justice Donal O’Donnell said the five-judge court was reserving its decision.
In dismissing the woman’s case in the High Court last June, Ms Justice Niamh Hyland acknowledged the reduced allowance causes the woman and her family “significant personal and financial strain”.
However, she found the Minister is not obliged to make more generous regulations for the allowance.
In agreeing last October to hear the appeal, the Supreme Court said the case contains issues of “systemic importance” for the carers of severely disabled children.
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