An appeal raising issues described by the Supreme Court as of “systemic importance” to carers is to be heard in April.
Among the issues in the appeal by a woman caring for her adult son, who has serious developmental disabilities, is whether Article 41.2 of the Constitution, recognising the work of women in the home, has any role concerning the State’s obligations when setting the level of the means-tested carer’s allowance.
Under Article 41.2, the State recognises that “woman, by her life within the home, gives to the State a support without which the common good cannot be achieved”. It provides that the State “shall” endeavour to ensure mothers are not obliged by economic necessity to engage in labour “to the neglect of their duties within the home”.
The Government proposes, in a referendum to be held on March 8th, to delete the article and replace it with a ‘care’ amendment under which “the State recognises that the provision of care by members of a family to one another..gives to society a support without which the common good cannot be achieved, and shall strive to support such provision”.
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The appellant mother, who effectively provides 24-hour care to her son and has no means of her own, is disputing the Department of Social Protection’s decision that she is not entitled to the full-rate of the carer’s allowance because the weekly income of her partner, the man’s father, is €850.
After the High Court rejected her case, the woman secured a direct appeal to the Supreme Court because of the importance of the issues raised.
At a case management hearing on Tuesday, Ms Justice Marie Baker confirmed the appeal would be heard by the court on April 11th, after the referendum. The judge, who chairs Ireland’s independent Electoral Commission, which is delivering the public information campaign for the referendum, and is due to retire as a Supreme Court judge in April, said she would not be a member of the court hearing the appeal.
When dismissing the mother’s case last year, the High Court’s Ms Justice Niamh Hyland said the Minister has total discretion concerning the class of people to be covered by regulations governing the payment of carer’s allowance and the extent to which they benefit.
Even accepting that the provision of a carer’s allowance vindicates the life of the woman within the home by making it possible to stay at home and care for a child with a disability, Article 41.2 cannot be treated as dictating the level at which the State must pay a carer’s allowance, the judge said.
She rejected other arguments under Article 40.1, the equality guarantee, saying a carer with a partner who has means is in a different factual situation than a carer whose partner has no means.
In a determination last November agreeing to hear an appeal, a panel of three Supreme Court judges said the provisions of section 186 of the Social Welfare Act Consolidation Act 2005 are “unusual” because at one level they arguably impose a duty on the Minster for making regulations and confer a discretion whether to do so.
The appeal raised important issues regarding the separation of powers because any obligation on the Minister to make regulations had implications for the spending of public money, the court said. It was unclear whether the court or the Oireachtas could validly authorise the making of such regulations.
Article 41.2, the panel noted, has not been the subject of extensive consideration by the courts. The constitutional provisions at issue, it added, have never been examined in the context of the provision of public funds to parent obliged to care full-time for severely disabled children.
The case, the judges concluded, raised issues of general public importance “of systemic importance” to carers which should be decided by the Supreme Court.
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