The Supreme Court has dismissed an appeal challenging the exclusion of Domiciliary Care Allowance (DCA) while a severely disabled child is in hospital for an extended period. The Court held that the appellants had not proved that the exclusion was invalid under the Constitution or incompatible with the European Convention on Human Rights (ECHR). It did not strike down or alter the legislation.
The appeal concerned Robert Donnelly and his son Henry, who was identified in the judgment as a minor. Henry was born with Down Syndrome and other serious medical conditions. He was hospitalised, mostly in Dublin, from his birth in June 2015 until November 2017. His family lived outside Dublin.
Mr Donnelly applied for DCA in July 2016. The application was refused in April 2017, and an internal review reached the same conclusion. The allowance was paid after Henry returned home in November 2017 and, at the time of the Supreme Court judgment, Mr Donnelly was receiving it.
The statutory scheme generally excludes DCA when a child resides in an institution, subject to limited exceptions. These include payment for up to 13 weeks in a 12-month period while a child is in hospital. The appellants argued that Mr Donnelly and his wife had provided extensive care during Henry’s hospitalisation and that the exclusion unfairly treated them differently from parents caring for a severely disabled child at home. The Department’s position was that DCA recognises the additional effort and expense of caring for a disabled child at home, while hospital care is funded by the State.
The Supreme Court said the burden remained on those challenging a law under Article 40.1 of the Constitution to prove their claim, taking account of the presumption that legislation is constitutional. A claimant must present material capable of establishing that a law lacks a legitimate objective or creates an irrational, arbitrary or capricious distinction. The Court said closer scrutiny may be required where a distinction rests on characteristics associated with prejudice or stereotyping.
The Court did not accept that the exclusion was based on the severity of a child’s disability. It said the distinction turned primarily on where the child was resident and was not, on its face, irrational. It also found insufficient admissible evidence about the effects of the exclusion on families of children in hospital generally. Evidence about the Donnellys’ own circumstances did not establish that the statutory distinction was irrational, and the UK research report relied on by the appellants had been ruled inadmissible in the courts below.
The Court also rejected the ECHR claim. It accepted that a severely disabled child requiring more than 13 weeks of inpatient treatment could have a relevant status for the Convention analysis, but found that the appellants had not supplied sufficiently probative evidence to establish incompatibility. The appeal was dismissed.