The Court of Appeal has dismissed a father and son’s challenge to rules that prevented payment of domiciliary care allowance while the child was resident in hospital for an extended period.
The judgment, delivered by Mr Justice Murray on 21 May 2021, upheld the High Court’s rejection of the challenge. The court found that the difference between children cared for at home and children in hospital had a rational basis in the allocation of public funds. It also rejected the claim under the European Convention on Human Rights.
The child, referred to in the judgment as HD, has Down syndrome and other serious medical conditions. He was almost continuously in hospital from his birth in June 2015 until his discharge in November 2017. His family lived in County Offaly, and he received hospital care in Dublin.
His father, Robert Donnelly, said he provided daily care in hospital, including feeding, bathing, medication, tracheostomy care, physiotherapy and developmental activities. He gave up his job and stayed during the week in accommodation beside the hospital provided by a charity. The child’s mother also helped with his care. A hospital social worker wrote that parents were expected to provide daily care during prolonged admissions, but the Court of Appeal said the letter did not establish a legal obligation requiring parents to provide the same level of care as the father did.
Donnelly applied for the allowance in July 2016. The Minister for Social Protection refused the application in April 2017, relying on the statutory rule that the child must normally reside with the qualified person and on the exclusion for a child resident in an institution. A review was refused in May 2017. The family then sought judicial review and declarations that the rules were unconstitutional and incompatible with the Convention.
The appeal court accepted that the child’s disability and hospitalisation were relevant to assessing the distinction, even though the allowance would have been paid to his father. But it said the State funded the child’s hospital maintenance and medical treatment, and was responsible for his care when his parents were absent. Those circumstances differed from caring for a child at home.
The court said the family’s evidence described their own substantial care and disruption, but did not establish how care or financial loss generally affected families in similar circumstances in Ireland. It also found the UK reports submitted by the family were not reliable evidence of the position in Ireland. Without evidence showing that the statutory distinction lacked a rational basis, the court said it could not invalidate the rules.
The court also rejected the argument that the legislation contained an unconstitutional omission requiring a remedy, and found no basis for the requested Convention relief. It proposed that the respondents contribute 50% of the appeal costs, subject to either party disputing that provisional view within ten days. It proposed no costs order for the High Court proceedings.