The Supreme Court has dismissed an appeal by BM and her minor son JM over the reduced rate of Carer’s Allowance paid to BM, affirming the High Court’s dismissal of their judicial review case.
In a judgment delivered on 12 November 2024, Mr Justice Maurice Collins held that section 186 of the Social Welfare Consolidation Act 2005 gives the Minister for Social Protection power to make regulations relaxing the allowance’s means test for specified classes of people, but does not require the Minister to do so. The Court also concluded that Article 41.2 of the Constitution had no bearing on the proceedings and did not require payment of the allowance at a particular rate.
BM has received Carer’s Allowance since 2007 for caring for JM, who has profound disabilities and requires full-time care. The judgment says she provides care around the clock, apart from when JM attends day care. After BM, JM and JM’s father began living together as a family in 2020, the Department assessed BM’s allowance by taking account of her partner’s means. In May 2021, a Social Welfare Appeals Officer set her weekly payment at €134, then below the scheduled rate of €219, plus €22.50 for a qualified child. The Chief Appeals Officer upheld that decision in January 2022.
The applicants did not contend in the appeal that BM’s current payment had been incorrectly calculated under the statutory rules. Their central argument was that the Minister should make regulations allowing carers in circumstances such as BM’s to receive a higher rate despite the means test. They also argued that the reduced payment conflicted with Article 41.2, which recognises the contribution of women’s work in the home and says the State shall endeavour to ensure mothers are not compelled by economic necessity to work outside the home to the neglect of their duties there.
Justice Collins said the legislation establishes a detailed scheme with a common scheduled rate and a means test. Reading the Minister’s power to make exceptions as a duty to do so would require the Court to impose an unspecified change for an undefined class of carers, he said. The judgment also noted that the Act does not set out criteria for deciding who would qualify for an exception or how much extra support they would receive.
On Article 41.2, the Court said the provision directs the State’s general policy but does not give individual mothers an enforceable right to a particular form or level of financial support. It did not prevent application of the generally applicable means test, including the aggregation of a couple’s means. The Court said BM and JM were receiving other forms of State support, while making clear that the level of support for carers remained a matter for public debate and policy decisions.
The appeal was dismissed and the High Court order affirmed. The judgment said this resolves the legal challenge but does not prevent the Minister or Oireachtas from reforming the regime.