The High Court has rejected a mother and son’s challenge to the rules used to means-test carer’s allowance, finding that the Minister for Social Protection was not obliged to make regulations providing higher payments to a prescribed group of carers.
In a judgment dated 21 June 2023, Ms Justice Hyland refused the applicants’ claim in its entirety. She said submissions on costs and final orders would be heard on 28 June. The judgment does not record the outcome of those later submissions.
The first applicant, identified as BM, provides full-time care for her son, JM, who was born in 2006 and has Down’s syndrome, epilepsy, autism spectrum disorder and other health and behavioural needs. The court found that the care was enormously demanding. It said the means test reduced her weekly allowance by €85, causing significant personal and financial strain. She received €134 a week, including an increase for one qualified child, after her and her partner’s means were assessed.
The applicants sought to quash a 21 January 2022 decision by the Chief Appeals Officer declining to review an earlier Appeals Officer decision. They also sought declarations that provisions of the Social Welfare Consolidation Act 2005 and related regulations were unlawful and unconstitutional. Their central submission was that section 186 required the Minister to make regulations allowing more generous payments in some circumstances.
The judge interpreted section 186(2) as giving the Minister a discretionary power. The Act’s detailed scheme already provides for a means test and reduced rates, she said, while the subsection did not identify a group entitled to an enhanced rate or conditions that would trigger a duty to make regulations. The mother might potentially benefit from such regulations, but the court could not know whether she would be included in any group the Minister chose to prescribe.
The applicants also argued that the rules were under-inclusive, relying on a Supreme Court decision concerning tax concessions for disabled drivers. The judge distinguished that case: no enhanced-payment scheme had been made here, so there was no scheme from which the applicants had been excluded. She rejected the constitutional arguments, including the claim that the rules discriminated against the applicants, finding that the proposed comparator— a carer without a partner with means—was not in a comparable position.
The court also rejected the challenges to the regulations, the 2022 review decision and the claim of incompatibility with the European Convention on Human Rights. The applicants had withdrawn their claims under the EU Charter of Fundamental Rights and for damages; the judge did not adjudicate on them.