The High Court has dismissed a father and son’s challenge to rules that prevented payment of domiciliary care allowance (DCA) while the child was a long-term hospital inpatient.
In a judgment delivered on 1 June 2018, Mr Justice Binchy rejected claims that the relevant provisions were unconstitutional or incompatible with the European Convention on Human Rights. The applicants had also sought to quash the Minister for Social Protection’s decisions refusing the allowance, but did not challenge how those decisions were made. Their case rested on the validity of the legislation and regulations.
Henry Donnelly was born with Down syndrome in June 2015 and required continuous hospital treatment until November 2017. His father, Robert Donnelly, applied for DCA in July 2016. The Minister refused the application in April 2017 because Henry was not normally resident with his father, and declined to reverse that decision on review the following month.
The legislation makes DCA payable to a qualified person who cares for a qualified child normally resident with them. It also provides that DCA is not payable while a child is resident in an institution, including a hospital. An exception allows payment to continue during a temporary hospital admission for up to 13 weeks in a 12-month period. Because Henry had been in hospital from birth, his father did not qualify under that exception. DCA began after Henry returned home in November 2017.
The court accepted that Mr Donnelly provided hands-on care for long hours, left his job and stayed near the hospital during the week. His wife cared for Henry at weekends. But the evidence did not establish the father’s actual financial losses. The judge also noted that the State met Henry’s medical and ordinary maintenance costs while he was in hospital.
On the constitutional claim, the judge accepted that equality requirements applied when the Oireachtas distinguished between people in the same eligible class. He nevertheless found that avoiding duplicate maintenance costs was a rational and objective purpose, and that the 13-week exception was proportionate. He rejected the claim of a constitutional omission, finding that the exclusion of children in institutions and the limited hospital exception were deliberate legislative choices.
For the Convention claim, the judge accepted that Henry’s circumstances—being a severely disabled child needing lengthy inpatient care—amounted to a status for the purposes of the discrimination claim. He still found no violation: the evidence did not show that the rules lacked reasonable justification or were disproportionate. The application for a declaration of incompatibility was dismissed.
The judgment expressed sympathy for the family and said a more flexible scheme might produce fairer results. It did not grant the relief sought. The judgment does not state a separate formal order quashing or affirming the Minister’s decisions.