High Court dismisses constitutional challenge to Domiciliary Care Allowance rules regarding children in hospital.

[2018] IEHC 421

THE HIGH COURT

JUDICIAL REVIEW

[2017 No. 464 J.R.]

IN THE MATTER OF THE CONSTITUTION OF IRELAND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

ROBERT DONNELLY AND HENRY DONNELLY (A MINOR SUING BY HIS FATHER AND NEXT FRIEND ROBERT DONNELLY)

APPLICANTS

AND

THE MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr Justice Binchy delivered on the 1st day of June, 2018

1. The second named applicant, whom I shall refer to hereafter as Henry, was born with Down Syndrome on 18th June, 2015 and he

has, from birth, suffered from a number of medical conditions which required him to have instant and almost permanent hospitalisation,

very often in an intensive care unit, from his birth until November 2017. In July, 2016, the first named applicant, Mr Donnelly, applied

to the first named respondent (the “Minister”) for payment of Domiciliary Care Allowance (“DCA”). This is a benefit which is payable to

the parent of a child, with whom that child is resident, where the child concerned has a severe disability and requires continuous care

and attention substantially in excess of that required by a child of the same age. Mr Donnelly’s application was refused by the Minister

on 6th April, 2017 on the grounds that Henry was not resident at the time with Mr Donnelly. Through his solicitors, Mr Donnelly

requested a review of that decision in light of the very significant time dedicated by Mr Donnelly to Henry’s care. By decision issued

on 23rd May, 2017, the Minister declined to reverse his decision of 6th April, 2017. On 29th May 2017, the applicants obtained leave

to issue these proceedings, whereby they seek the following reliefs:-

“(1) An order of certiorari quashing the decisions of the Minister of 6th April, 2017 and 23rd May, 2017.

(2) A declaration that ss. 186D(1)(a) and 186E of the Social Welfare Consolidation Act 2005 (as amended) (the “Act of

2005”) and such provisions of S.I. 142 of 2007 (inter alia Regulations 13 and 140C-E), (all of which together I shall

hereafter refer to as the “impugned provisions”) which prohibit the payment of DCA to Mr Donnelly are unconstitutional on

the grounds that, inter alia, the said provisions unlawfully discriminate against the first and second named applicants by

treating them unequally before the law, respectively, with the parents of other severely disabled children, other severely

disabled children, in an unjustified manner and is disproportionate, arbitrary and contrary to reason and fairness, insofar as

the provisions of the said Act of 2005 prohibits payment of a social welfare payment intended for their benefit.

(3) A declaration, pursuant to s. 5 of the European Convention on Human Rights Act 2003 (the “Act of 2003”) that the

impugned provisions are incompatible with the said Act on the grounds that DCA is within, inter alia, the scope or ambit of

Article 1 of Protocol 1 and Article 8 of the Act of 2003, and therefore must be administered without discrimination on any

of the grounds identified in Article 14 of the Act of 2003, such as Henry’s “other status” as a severely disabled child and;

that s. 186E of the act of 2005 unlawfully discriminates against Henry by denying him and his family the benefit of DCA

because he requires lengthy hospital inpatient treatment, while granting it to those severely disabled children who do not

require hospitalisation.

(4) Alternatively, a declaration that Henry is resident with Mr Donnelly for the purposes of the Act of 2005 and S.I. 142 of

2007 (inter alia Regulations 13, 140C-E) and/or the said provisions are unconstitutional, in the premises that there is an

unconstitutional lacuna.”

2. Leave to issue these proceedings was granted upon the following grounds:-

“(1) The impugned provisions breach Henry’s constitutional right to equal treatment before the law pursuant to Article

40.1 of the Constitution. The applicants also enjoy personal rights under Articles 40.3 and 42 of the Constitution.

Statutory provisions affecting rights under all of the aforementioned articles must be proportionate and;

(a) be rationally connected to the object and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible; and

(c) be such that their effects on rights are proportionate to the objective.

While the State is entitled to restrict access to its social welfare system, it must not do so in the manner which has the

effect of wholly denying an Irish citizen child the benefit of a social welfare payment intended to contribute to his care

and for his wellbeing. The impugned provisions permit the exclusion of payment of DCA in respect of Henry in a manner

which constitutes an unjust attack on his rights, being arbitrary and contrary to reason and fairness. Further, the denial

of DCA is contrary to the best interests of Henry.

(2) DCA constitutes a possession for the purposes of Article 1 of Protocol 1 of the ECHR Act 2003. DCA is also, pursuant

to Article 8 of the ECHR Act 2003, the means by which States demonstrate their respect for family life and rights of

families. Contrary to those articles, the impugned provisions permit the exclusion of payment of DCA in respect of Henry

to Mr Donnelly. Henry is entitled to equal treatment with other disabled children (other status) who are not in hospital.

There are insufficient reasons justifying the difference of treatment as between the granting of DCA in Ireland to those

who are in hospital and those who are not. The denial of DCA is contrary to Henry’s best interests and an interference

with the family life of both applicants and/or a denial of a possession/property right.

(3) The Regulations, and specifically regulations 13 and 140c-e thereof set out exceptions to the rule excluding payment

of DCA to children in Institutions. The applicants are within these exceptions or, alternatively, the exceptions are not

sufficiently wide and fail to take account of circumstances such as those of the applicants in a manner which constitutes

an unconstitutional lacuna.”

DCA and the Impugned Provisions

3. DCA is a social welfare benefit which is paid in respect of children who are considered to have needs substantially in excess of

other children of the same age, in recognition of the extra care and attention that is required to be provided in the home by parents

of those children. It was originally introduced by way of a Department of Health circular in 1973, and was payable pursuant to s. 61 of

the Health Act 1970. The 1973 departmental circular was superseded by a circular of the Department of Health and Children of

January, 2007. That circular stated, inter alia:-

“Since the allowance is intended as a recognition of the additional burden involved in caring for children with a severe

disability in the child’s home, it does not apply to children who are maintained full-time in residential homes, schools or

other centres. Eligible children in part-time residential care who go home at weekends or holidays will receive a pro-rata

payment, i.e. a per nightly rate based on the number of nights spent at home ….

HOWEVER, THE ALLOWANCE IS PAID IN FULL IN CASES WHERE ELIGIBLE CHILDREN WHO LIVE FULL-TIME AT HOME ARE

ABSENT FOR A PERIOD/S OF NOT MORE THAN EIGHT WEEKS IN ANY TWELVE MONTH PERIOD, I.E. HOSPITAL ADMISSIONS

OR RESPITE.

The Health Service Executive may consider continuing payment of the allowance in cases of extreme hardship where an

eligible child spends more than eight weeks in hospital in any twelve month period, and where the parents/guardian have

to regularly travel long distances to visit the child in hospital.”

(The text appearing in upper case above is endorsed in that manner on the circular).

4. Soon after the circular of January 2007, DCA was put on a statutory footing by way of amendment to the Act of 2005. The

amendment was introduced through the insertion of Chapter 8A of the Act of 2005 by s. 15 of the Social Welfare and Pensions Act

2008. The impugned provisions are ss. 186D(1)(a) and 186E of the Act of 2005, as well as provisions of S.I. 142 of 2007 which

prescribe certain rules for the payment of DCA.

5. Section 186 of the Act of 2005 makes provision for payment of DCA and s. 186C(1) provides:-

“A person who has not attained the age of 16 years (in this section referred to as the ‘child’) is a qualified child for the

purposes of the payment of domiciliary care allowance where –

(a) the child has a severe disability requiring continual or continuous care and attention substantially in excess of

the care and attention normally required by a child of the same age,

(b) the level of disability caused by that severe disability is such that the child is likely to require full-time care and

attention for at least 12 consecutive months,

(c) the child –

(i) is ordinarily resident in the State, or

(ii) satisfies the requirements of s. 219(2),

and

(d) the child is not detained in a children detention school.”

6. It is common case that Henry has at all times been a qualified child for the purposes of s. 186C(1) of the Act of 2005. However,

DCA is payable not to a qualified child, but to a “qualified person” in respect of a qualified child. Section 186D of the Act of 2005

provides:-

“(1) A person is a qualified person for the purpose of receiving domiciliary care allowance in respect of a qualified child if -

(a) the child normally resides with that person,

(b) that person provides for the care of the child, and

(c) the person -

(i) is habitually resident in the State, or

(ii) at the date of the making of the application for domiciliary care allowance, is a person to whom

paragraph (a), (b) or (c) of section 219(2) applies.

(2) For the purposes of subsection (1)(a) the Minister may by regulation make rules for determining with whom a qualified

child is to be regarded as normally residing.”

7. While it can be seen that it is a requirement of s. 186D that, to be a qualified person for the purpose of receiving DCA, the child

must normally reside with the person concerned, this section was not specifically referred to either in the decision of the Minister of

6th April, 2017 or the further decision of the Minister dated 23rd May, 2017, upon the review of the decision of 6th April, 2017. The

decision of 6th April, 2017 states simply that “DCA legislation states that the child for which the allowance is payable must normally

be resident with the carer”. This is of course a reference, without mentioning the section, to the requirement set out in s. 186D(1)(a)

of the Act of 2005. The decision of 6th April, 2017 then proceeds to quote from s. 186E(1) of the Act of 2005 which states:-

“Subject to subsections (2) and (3), domiciliary care allowance is not payable for any period during which a child is

resident in an institution.”

8. “Institution” is defined in s. 186B of the Act of 2005 as follows:-

“In this Chapter—

‘institution’, means a hospital, convalescent home or home for children suffering from physical or mental disability or

ancillary accommodation and any other establishment providing residence, maintenance or care where the cost of the

child’s maintenance in that institution is being met in whole or in part by or on behalf of the Executive or the Department

of Education and Science.”

9. The letter of 6th April, 2017 concludes with a request to Mr Donnelly to notify the Minister as soon as Henry is discharged from

hospital so that the decision can be reviewed. The letter of the Minister of 23rd May, 2017 goes a little further and states that DCA

will become payable when Henry returns home. The Court was informed that Henry returned home in November, 2017 and since then,

DCA has been paid to Mr Donnelly at the rate of €309.50 per month. Accordingly, these proceedings are concerned with the period for

which DCA was denied to Mr Donnelly, i.e. from the date of Henry’s birth on 18th June, 2015 until his arrival home in November, 2017.

10. The Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), as amended by the

Social Welfare (Consolidated Claims, Payments and Control) (Domiciliary Care Allowance) (Amendment) (No.3) Regulations 2009 (S.I.

No. 162 of 2009) (all of which I shall hereafter refer to as the “Regulations”), provides a limited exception to the requirement that a

child, who is resident in an institution, is not eligible for DCA. Article 140E of the Regulations provides:-

“For the purpose of section 186E(3), domiciliary care allowance shall continue to be payable in respect of a qualified child

who has been admitted to an institution on a full-time basis for the purpose of receiving medical or other treatment of a

temporary nature for not more than 13 weeks in a 12 month period.”

In Henry’s case, because he was resident in an institution from the time of his birth up until November, 2017, Mr Donnelly did not

receive the benefit of this exception.

11. There are also other provisions in the Regulations designed to deal with situations that could undermine entitlement to the

benefit. So for example, while Article 140C(2) provides:-

“Except as provided for in Article 140D a qualified child who is reside with a person for less than 5 days in any one week

shall not be regarded as normally residing with that person for the purposes of domiciliary care allowance.”

Article 140D then provides:-

“(1) Notwithstanding Article 140C for the purposes of section 186E(1), domiciliary care allowance shall be payable in

respect of a qualified child who is temporarily resident with a qualified person for not less than two days and not more

than four days in any one week in which the child would otherwise be regarded as residing in an institution.

(2) In the case of a qualified child to whom sub-article (1) applies, the monthly amount of domiciliary care allowance

payable shall be 50 per cent of the amount set out in Part 5 of Schedule 4 to the Principal Act.”

Background

12. Henry was born on 18th June, 2015, at Mullingar Hospital. He is the youngest of three children. His siblings are now ten and eight

years of age. The family resides in Kilcormack, Co.Offaly.

13. It has at all times been accepted by the Minister that Henry is a qualified child within the meaning of s. 186C(1) of the Act of

2005. Henry’s diagnosis as of 21st June, 2016 is described in a report of a Dr Vaish, a consultant paediatrician, and includes no less

then thirteen different headings of diagnosis. These include trisomy 21 (Down Syndrome), recurrent aspiration, oral aversion, gastro-

oesophageal reflux, hypotonia, hypothyroidism, intermittent stridor, severe tracheomalacia and a cardiorespiratory arrest on 5th

November, 2015. Henry has required, from birth, ongoing hospitalisation and treatment for these various conditions. Following upon his

birth in Mullingar Hospital, Henry was transferred to the Children’s University Hospital, Temple Street. He was discharged to Mullingar

Hospital on 18th February, 2016, but owing to a recurrence of his symptomology, he was transferred back to Temple Street again on

24th March, 2016 where, amongst other things, a feeding tube was inserted. He eventually had a tracheostomy which prolonged his

stay in hospital. It was also necessary to train Henry’s parents to care for him at home.

14. In his grounding affidavit, Mr Donnelly describes how it became necessary for him to leave his position of employment (that of a

radio broadcaster) in order to care for Henry while in hospital and to complete all of the training requirements for Henry. It was

necessary for Mr Donnelly to live in Dublin five days a week, and apparently he was able to reside at no additional cost in a house

nearby the hospital, provided by a charitable service. Mr Donnelly deposes that he would normally spend eight to twelve hours per

day assisting with the care of Henry, and describes how he would carry out bathing, feeding, medications, trachi care, physiotherapy

exercises, physical and sensory activities, social development skills programs and motor skill developments and all other care tasks

associated with a sick child. Mr Donnelly deposes that he has been trained in traciostomy care and changing, suctioning, awareness

of care in a sick child, the safe application of appropriate medications etc. with a view to providing 24 hour management and care for

Henry at home, but some of which care he provided to Henry while in hospital. He expressly deposes that the level of care which he is

providing to Henry is considerable and is effectively a full-time job. During Henry’s time in hospital, Henry’s mother also visited and

assisted with Henry’s care, usually on a Thursday, a Saturday and a Sunday. During this difficult period Mrs Donnelly was caring for

the other children in the family without the assistance of Mr Donnelly, because of his commitment to Henry.

15. In a second affidavit sworn in support of this application, Mr Donnelly exhibits a report from a Ms Kim Murray, medical social

worker at Our Lady’s Children’s Hospital, Crumlin where Henry also received treatment and care. Ms Murray says that while Henry’s

medical care was provided by the medical team, his parents were expected to provide the following care for Henry:-

• Tractotomy education and care;

• Peg education and care;

• Care of Hickman line;

• Education in relation to Hickman line;

• Manage the side-effects of chemotherapy;

• Personal hygiene;

• Daily psychotherapy;

• Daily speech and language therapy;

• Daily stimulation and entertainment.

Ms Murray concludes this report with the following paragraph:-

“During prolonged hospitalisation parents are required to provide consistent emotional warmth and to respond to the

cognitive and emotional need (sic) of the child. Mr and Mrs Donnelly were advised by the multidisciplinary team that one

parent was required to provide daily care for Henry for the duration of his admission, not to provide such care was

considered neglect. Mr Donnelly provided daily care for his son Henry for the duration of his treatment”.

16. While none of this was disputed by the respondents, it was submitted by the respondents that there was no evidence put forward

by the applicants that the level of support and care that Henry required from his parents while in hospital was as much as or greater

than the level of care that would be required if he was at home.

17. In a replying affidavit delivered on behalf of the respondents and dated 6th July, 2017, Mr Roy Baldrick, assistant principal of the

first named respondent explains the background to the introduction of the DCA. He refers to the 1973 circular and to the placing of

the benefit on a statutory footing by the enactment of Chapter 8A of the Act of 2005, as inserted by s. 15 of the Social Welfare and

Pensions Act 2008. He avers that the payment was specifically designed to help parents or guardians of severely handicapped

children between two and sixteen years of age who are being cared for at home. The lower age limit of two years was removed in

2001 (under the old scheme). He avers that the payment of DCA has always been premised on a requirement that the qualified child is

resident at home with his or her parents and the payment is made to recognise the additional obligations and expense that are placed

on parents for caring for children in their own home. For that reason, he says, DCA has never been payable in respect of qualified

children who reside in an institutional setting or otherwise reside outside of the home. He avers that in 2001 the administrative

scheme then in operation was amended to allow for the pro-rata payment of the allowance in respect of periods of time spent at

home by qualified children who ordinarily resided in a special school or other institutional setting. The statutory scheme, when

introduced, allowed for a similar flexibility. He draws attention to the provisions of the Regulations, in particular the provision that

permits of payment of DCA to qualified persons in respect of a qualified child in circumstances where the child may be resident in a

care setting or hospital for part of a week or for certain periods during a twelve month period.

18. He then deals with the situation of the applicants and explains that the application for DCA was disallowed because, while Henry

met the medical criteria for DCA, he was not eligible for the payment by reason of the application of s. 186E(1) of the Act of 2005,

because he was resident in hospital on a full-time basis. He expresses the opinion that the application of the legislation to the facts

of this case is consistent with the underlying policy behind DCA, which is paid in recognition of the additional obligations and expenses

that are placed on parents for the caring of children in their own home. He points out that at the time of the swearing of his affidavit,

Henry was currently admitted to hospital where his care needs were being met by public funds. He avers that when Henry was

released from hospital and resident with his parents, it will be possible for DCA to paid. This of course is what ultimately transpired.

19. Mr Baldrick also draws attention “for completeness” to payment of illness benefit to Mr Donnelly at the rate of €193 per week,

with effect from 19th November 2015. Mr Donnelly confirmed receipt of this payment up to 2nd November 2017. Mr Donnelly’s counsel

informed the Court that eligibility for this benefit arose directly out of the stress experienced by Mr Donnelly in the wake of Henry’s

birth and care needs. The Court was also informed that Mr Donnelly would soon qualify for payment of a carer support grant in the

sum of €1,700 per annum, and that he has applied for payment of carer’s allowance of up to €210 per week.

The Issues

20. In his submissions on behalf of the applicants, counsel for the applicants, Mr Shortall B.L. reduced the issues to two questions:-

(i) Are ss. 186D(1)(a) and 186E of the Act of 2005 and such provisions of S.I. 142 of 2007 (inter alia Articles 13 and

140C-E) which prohibit the payment of domiciliary care allowance to Mr Donnelly, unconstitutional?

(ii) Are ss. 186D(1)(a) and 186E of the Act of 2005 and such provisions of S.I. 142 of 2007 (inter alia Regulations 13,

140C-E), which prohibit the payment of domiciliary care allowance to Mr Donnelly, incompatible with the ECHR Act 2003?

21. It should be noted that no case was made impugning the manner in which the decisions of 6th April, 2017 and 23rd May, 2017

were made by the Minister. The applicants’ case is advanced entirely upon the bases that the impugned provisions are

unconstitutional and/or incompatible with the ECHR Act 2003.

Submissions of the Parties

Submissions of the Applicants

22. In his submissions to the court, counsel for the applicants, Mr Shortall, argues that the impugned provisions breach the guarantee

of equal treatment before the law as provided for in Article 40.1 of the Constitution. He is, however, careful to say that the

applicants do not assert that social welfare payments such as DCA are , per se, protected by the Constitution. He acknowledges that

the courts have consistently adopted the position that they cannot adjudicate upon such matters which are peculiarly matters within

the field of national policy, to be decided by a combination of the executive and the legislature, and in the absence of extreme

circumstances the court will not interfere with the discretion enjoyed by the Oireachtas in the discharge of functions that are within

its remit.

23. It is submitted however that in making provision for DCA, the Oireachtas has identified a category of persons i.e. those with

severe disabilities who require continual or continuous care and attention, substantially in excess of the care and attention required

by a child of the same age, on a full-time basis, and for whom it is appropriate that the State should provide some measure of

support. Having identified that that category of persons is in need of support, the Oireachtas has then provided a two limb test to

qualify for the DCA: firstly, the qualified child must reside with the qualified person and secondly, the qualified person must provide for

the care of the child. The first limb of the test cannot be met by a person whose child is resident in a hospital, other than in the

circumstances prescribed by the Regulations (i.e. eligible parties would be entitled to DCA for a period of thirteen weeks in which the

eligible child is hospitalised in any twelve month period). It is submitted however that the second limb of the test can be met by a

parent providing a significant level of care to a child in a hospital, such as in the case of Mr Donnelly who has been required to leave

his job, and his family home for most of the week, to reside in a house beside the hospital and to provide care to Henry for eight to

twelve hours per day, five days per week, while his spouse provides care on the remaining two days and each of them are required to

be “on call” in the evenings and at night. In these circumstances, it is submitted that it can hardly be disputed that Mr Donnelly, and

his wife, are providing full-time care to Henry. But they are not eligible to receive DCA because of the requirement that during the

relevant period, Henry was residing in hospital. Mr Shortall submits that the provisions therefore have the effect of treating Henry

unequally before the law (by comparison to those receiving the full-time care of a parent or guardian at home), on the basis,

ironically, that because of the extreme nature of his medical condition he is required to be detained in a hospital. This differentiation

of treatment is not, it is submitted, legitimised by reason of being founded on a difference of capacity, whether physical or moral, or a

difference of social function. Mr Shortall has referred me to a number of authorities in which the issue of unequal treatment has been

considered. Firstly, he refers to the decision of M.D. (a minor) v. Ireland [2012] 1 I.R. 697 in which Denham J. (as she then was) in a

discussion about Article 40.1 stated:-

“The central principle of the Article rests, firstly, on the common humanity which we all share and, secondly, on the

general understanding that for the State to pass a law which treats people, who are objectively in the same situation vis-

à-vis the law, unequally, is an affront to fundamental ideas of justice and even to rationality.

Thus strict equality is the norm laid down by Article 40.1. However, the Article recognises that perfectly equal treatment

is not always achievable, rather the Article recognises that applying the same treatment to all human persons is not

always desirable because it could lead to indirect inequality because of the different circumstances in which people find

themselves.”

24. Mr Shortall places special reliance upon the decision of Laffoy J. in S.M. v. Ireland (No. 2) [2007] 4 I.R. 369 wherein, with

reference to s. 62 of the Offences Against the Person Act 1861, which mandated substantially different penalties in respect of

indecent assaults upon males and females, she stated:-

“It is inconsistent with the Constitution unless the differentiation it creates is legitimated by reason of being founded on

difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which

was not invidious, arbitrary or capricious.”

25. Mr Shortall submits that the difference in treatment between children residing at home and children residing in a hospital because

of their medical treatment requirements is arbitrary, not recognising as it does that in many cases and in particular in this case the

parent or guardian will be required to give as much of him or herself, and to expend as much if not more as the same resources in the

care of their child while in hospital, as a parent may be required to do at home.

26. As an alternative argument, Mr Shortall submits that there is a “constitutional omission” in the impugned provisions insofar as the

Oireachtas has failed to make provision for persons such as Mr Donnelly who are providing full-time care for a child while in hospital. It

is submitted that there is no objective or justifiable reason why the Oireachtas could not provide for these circumstances.

27. Mr Shortall referred to a number of authorities in support of the argument that there has been a constitutional omission. In Byrne

(a minor) v. Director of Oberstown School [2013] IEHC 562, Hogan J. directed the release from custody of the applicant in

circumstances where he would have been released had he been detained in another institution i.e. St. Patrick’s. Hogan J. considered

that the difference in treatment between those in Oberstown and St. Patrick’s was a legislative omission resulting in a violation of the

constitutional rights of the applicant by failing to afford him the same remission entitlements available to similarly situated juvenile

offenders.

28. In Carmody v. Minister for Justice [2010] 1 I.R. 635, the Supreme Court granted a declaration that the applicant had a

constitutional right to apply, prior to being tried, for legal aid (to include counsel) in criminal proceedings and to have that application

heard and determined on its merits. The Supreme Court made an order prohibiting the prosecution from proceeding in respect of the

criminal charge referred to in the proceedings unless and until the applicant was afforded the right identified and affirmed by the

Court. By treating with the matter in this way, the Supreme Court did not need to declare the impugned legislation unconstitutional

and was instead able to afford a remedy that addressed the constitutional omission.

29. In B.G. v. Judge Murphy [2011] 3 I.R. 748, Hogan J. referred to a constitutional lacuna arising “… by reason of what would appear

to be a mere accidental oversight in the course of statutory drafting, the Oireachtas had inadvertently failed to have proper regard to

the rights and interests of those who are either mentally ill or whose mental capacity is in doubt”. He held that:-

“While it is, of course, true that the court cannot indicate to the Oireachtas how or in what manner a particular

enactment might be repealed or altered, for reasons which I will now endeavour to set out, it is clear from the subsequent

post Somjee case law that it can declare that the law in question fails to meet constitutional norms by reason of an

unconstitutional omission, even if the court refrains from actually declaring that law to be unconstitutional…

By granting this form of declaration in the unusual cases where this relief seems appropriate, the courts may be further

said to advance the dialogue between the three branches of government which is a healthy feature of the separations of

powers.”

30. In a passage also relied upon by counsel for the applicants, Hogan J. said:-

“Returning to the question of remedies, in some instances, therefore, the courts can cure the unconstitutionality caused

by a legislative omission by (possibly) extending the scope of the legislation by ensuring that it operates equally or

(certainly) by granting a declaration regarding its scope of application. The existence of such a jurisdiction in the former

category of cases is perhaps uncertain and, insofar as it can be exercised at all, it is confined to admittedly rare and

special cases.”

Hogan J. then went on to discuss the case of McKinley v. Minister for Defence [1992] 2 I.R. 333 in which the Supreme Court found

that the common law rule whereby a wife could not sue for the loss of consortium in respect of her husband was unconstitutional, but

considered that this could be remedied by extending the rule so that plaintiffs in the position of Ms McKinley could sue in respect of

injuries to their spouse. However, Hogan J. noted that this was a decision that was concerned with a common law rule only and

whether or not the same principle upon which the relief was granted in that case could be applied to a legislative omission awaits

resolution in an appropriate case.

31. It is further submitted on behalf of the applicants that the Oireachtas intended to ensure that DCA would be paid in respect of

qualified children in the most varied of circumstances and that the limited exception provided for by the Regulations (i.e. that DCA

would be paid in cases of hospitalisation of children for up to thirteen weeks in any twelve month period) is unfair and cannot be

regarded as being within the intention of the Oireachtas. The Court was referred to a number of cases which it is submitted are

authority for the proposition that where such Regulations are found to be contrary to the intentions of the Oireachtas, then they may

be struck down as being ultra vires the legislation pursuant to which they were made. In particular, the Court was referred to the

decision of the Supreme Court in McHugh v. Minister for Social Welfare [1994] 2 I.R. 139 in which the Court struck down the social

welfare regulations which it found to be illogical. In the words of McCarthy J.:-

“If a regulation is demonstrably lacking in logic and unfair it cannot be sustainable within the framework of the scheme; it

cannot be a proper application of the statutory power to make regulations.”

32. In the same case, O’Flaherty J. stated that:-

“I believe the impugned article of the regulations is not only anomalous: it goes against the grain of what the legislation

set out to achieve. The promulgation of such an article in the course of a regulation made under legislation that is meant

to provide financial amelioration for disadvantaged members of the community cannot be regarded as being within the

intentions of the Oireachtas in enacting the primary legislation. Therefore, it must be held to be ultra vires the

legislation.”

33. Mr Shortall submitted that the limited exceptions set out in Article 140E of the Regulations is lacking in logic, is unfair and cannot

be regarded as being within the intentions of the Oireachtas.

ECHR Arguments

34. It is submitted that the DCA is a possession within the meaning of Article 1, Protocol 1 of the European Convention on Human

Rights (the “Convention” or the “ECHR”). Counsel for the applicants acknowledges that there is no obligation under the ECHR to adopt

any particular or particular kind of social welfare scheme, but once adopted, such schemes must comply with Article 14 of the

Convention. So, for example, in Carson and Others v. United Kingdom (2010) 51 EHRR 13, the European Court of Human Rights

(“ECtHR”) held, at paras. 63-65 that Article 1, Protocol 1 did not require a contracting State to establish a retirement pension

scheme, but if it did so, the scheme fell within the scope of Article 1, Protocol 1 and so had to be administered without discrimination

on any of the grounds identified in Article 14. In Niedzwiecki v. Germany (2006) 42 EHRR 33, [2008] ECHR 928, the ECtHR held that

child benefit was protected within Article 8, which then engaged Article 14 of the ECHR. Article 14 prohibits discrimination on:-

“… any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association

with a national minority, property, birth or other status”.

35. It is submitted that in this case there is discrimination on the grounds of the applicants’ “other status” which, in Henry’s case, is

that of a severely disabled child requiring lengthy inpatient hospital treatment and that the applicants suffered discrimination by

comparison to other eligible “qualified children” who are not in need of lengthy inpatient hospital treatment, and who are thereby

eligible for DCA.

36. The applicants rely upon the following passage of the judgment of the ECtHR in Niedzwiecki:-

“According to the Court’s case-law, a difference of treatment is discriminatory for the purposes of Article 14 of the

Convention if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is

not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The

Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in

otherwise similar situations justify a different treatment.”

37. In the case of Stec and Ors v. United Kingdom 65731/01; 65900/01 [2006] ECHR 393 (12 April 2006), the ECtHR stated:-

“On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general

measures of economic or social strategy … and the Court will generally respect the legislature’s policy choice unless it is

‘manifestly without reasonable foundation.’”

The applicants submit that in this case the policy choice of the legislature is manifestly without reasonable foundation.

38. Special reliance is placed upon the decision of the United Kingdom Supreme Court (“UKSC”) in the case of Mathieson v. Secretary

of State for Work and Pensions [2015] UKSC 47, and because of the significant similarities between the facts of that that case and

the facts of this case, it is both desirable and necessary to give that case particular consideration. The claimant in that case was a

young boy who had been diagnosed with a number of severe medical conditions soon after his birth in June, 2007. For a period after

his birth, he lived at home with his parents and siblings, and because of his complex bodily needs and care requirements, the claimant

was awarded payment of the equivalent social welfare benefit in the UK, to DCA in this jurisdiction, known as Disability Living

Allowance (“DLA”). In its judgment, the court notes that it is of some importance that, notwithstanding that he was a child, it was

the claimant himself, and not either or both of his parents, who was entitled to DLA, although the benefit had of course been payable

to one of his parents, his father, on his behalf. The claimant was admitted to hospital for a period of thirteen months, in July, 2010,

during which period one or other of his parents was at the hospital at all times and they remained his primary caregivers, administering

twice daily physiotherapy, giving nebulised antibiotics, feeding him by nasogastric tube and changing his stoma bag up to eight times

a day. The claimant’s parents estimated that as a result of his hospitalisation, they incurred extra expenses of the order of £8,000.00.

This was not disputed by the respondent. The relevant provisions in the DLA Regulations provided that where a child who is otherwise

entitled to payment of DLA is maintained free of charge while undergoing medical or other treatment as an in-patient in a NHS

hospital, he shall not be entitled to payment of the benefit for any period in excess of 84 days, and so payment of DLA was

suspended once the claimant had been in hospital 84 days. However, other social welfare benefits referable to the claimant continued

to be paid, but not so as to raise the family’s standard of living beyond subsistence level. The claimant’s father gave evidence that in

order to meet the shortfall in his expenditure arising upon the termination of payment of DLA, he had to borrow £4,000.00 from

friends. In the proceedings, it was claimed that the suspension of payment of DLA breached the claimant’s right not to be

discriminated against under Article 14 of the Convention when read together with the right to the peaceful enjoyment of his

possessions in Article 1 of the first protocol to the Convention. In the proceedings, the respondent conceded that the provision of

DLA fell within the scope of Article 1 of the first protocol of the Convention, but contended that the claimant did not have any

“status” within Article 14 on which the decision to suspend his DLA was based and that, in any event, the 84 day rule was justified as

a means of avoiding overlapping provision to meet disability related needs.

39. The Court had to consider whether or not the claimant had a “status” for the purposes of Article 14 of the Convention. It was

contended on behalf of the claimant that for this purpose, his status was that of a severely disabled child who was in need of lengthy

in-patient hospital treatment and care, and that, in comparison with a severely disabled child who was not in need of lengthy in-

patient hospital treatment and care, the application to the claimant of the 84 day rule discriminated against him contrary to Article 14

of the Convention.

40. In his judgment, Lord Wilson noted that at first sight this argument appeared contrived. He conducted an analysis of various

decisions within the United Kingdom and in the ECtHR in which the issue of status had been considered. He concluded:-

“Decisions both in our courts and in the ECtHR therefore combine to lead me to the confident conclusion that, as a

severely disabled child in need of lengthy in-patient hospital treatment, Cameron had a status falling within the grounds of

discrimination prohibited by article 14. Disability is a prohibited ground (Burnip v Birmingham City Council [2012] EWCA Civ

629, [2013] PTSR 117). Why should discrimination (if such it be) between disabled persons with different needs engage

Article 14 any less than discrimination between a disabled person and an able-bodied person? Whether, as in Cameron’s

case, the person is born disabled or whether he becomes disabled, his disability is or becomes innate …”

Similarly, Lord Mance concluded:-

“To my mind, a child hospitalised free of charge (essentially in a NHS, rather than private, hospital) for a period longer

than 84 days can be regarded as having a different status to that of a child not so hospitalised.”

Having thus concluded that the claimant in that case had a different status to other severely disabled children, because of the

duration of his hospital treatment, the court then moved to consider whether or not the difference in treatment could be justified.

The Court referred to the decision of the European Court of Human Rights in Stec v. United Kingdom in which it was held that:-

“A difference of treatment is … discriminatory if it has no objective and reasonable justification; in other words, if it does

not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and

the aim sought to be realised.”

41. The Court noted that in that case the ECtHR held that States enjoy a margin of appreciation in relation to social security

provisions which should be respected unless they are “manifestly without reasonable foundation”. In his decision, Lord Mance stated

that “courts should not be over-ready to criticise legislation in the area of social benefits which depends necessarily on lines drawn

broadly between situations which can be distinguished relatively easily and objectively”. The Court considered the application by the

legislature of a “bright line rule” in order to determine eligibility for benefits, which would avoid case by case analysis and save very

significantly on administrative costs. Lord Mance quoted from the decision of Lord Bingham in the case of R. (Animal Defenders

International) v. Secretary of State for Culture, Media and Sport [2008] A.C. 1312 where he said, at para. 33:-

“… legislation cannot be framed so as to address particular cases. It must lay down general rules … A general rule means

that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases

will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is

beneficial.”

42. The Court then went on to consider the evidence before it, comprising two publications produced by charities on the curtailment

of entitlement to DLA as well as a report from the Citizens Advice Bureau attached to Great Ormond Street Hospital in the latter of

which it was stated:-

“It can be devastating for families when payments of Disability Living Allowance stop. The caring responsibilities of parents

of child in-patients are enormous. It is often not realised that parents are required to attend hospital when their children

are in-patients and to take an active part in their medical management. If they fail to attend, the hospital’s social workers

are informed. Many carers live either in make-shift beds on the wards or in nearby hospital-provided accommodation.”

The Court noted that this report concluded:-

“Our view is that the 84-day rule unfairly and unjustifiably restricts benefit entitlement. When the 84-day rule was

introduced, it may have been the case that families were discouraged or not permitted to stay with their children in

hospital. However, it ignores the modern reality of paediatric in-patient healthcare and it removes necessary support from

under the feet of the country’s most vulnerable people.”

43. The Court accepted these conclusions and noted that the respondent did not adduce any evidence in response to its reports.

The Court also accepted that there was evidence to suggest that the number of families incurring additional costs as a result of their

child’s admission to hospital was more than a small minority. The Court also accepted as evidence conclusions in a survey included in

one of the reports before it that 99% of parents provide no lesser level of care when their child is in hospital and that 93% often

suffer an increase in costs in such circumstances. From this Lord Wilson concluded that the case before it was not a hard case,

unreflective of the position of most parents in their situation and that the personal and financial demands made on the substantial

majority of parents who helped to care for their disabled children in hospital are, to put it at its lowest, no less than when they cared

for them at home. Lord Mance considered that the justification offered by the respondent for the 84 day rule failed to reflect the

modern emphasis on the importance of parents, in particular, continuing to provide assistance in connection with bodily functions

while their child is undergoing long term hospitalisation. He went on to say, at para. 58:-

“The grant of DLA is linked to the existence of disability-related needs. It is plainly legitimate to make its continuation or

withdrawal conditional upon the continuation of the same needs. Here, however, the evidence indicates that the same

needs, in terms of parental attention, existed and were met during Cameron’s hospitalisation after, as before, the expiry

of the 84-day period. But, in order to continue to provide this parental attention, the parents had, necessarily, to incur

ancillary expenses and loss, such as extra travel and meal costs and loss of earnings.”

He concluded that:-

“The withdrawal of DLA after 84 days was not justified in Cameron’s case by any matching reduction in his needs for

disability-related attention by his parents.”

44. In a nutshell therefore the Court concluded that there was no objective and reasonable justification for the difference in

treatment between the claimant on the one hand and a child suffering from severe disabilities who was being cared for at home on

the other and that, on the evidence before it the personal and financial demands made on the substantial majority of parents who

help to care for their disabled children in hospital are, at least, no less than when they care for them at home, and there had

therefore been a violation of the claimant’s human rights under Article 14 of the Convention, when taken together with Article 1,

Protocol 1.

Submissions of Respondents

45. At the outset, counsel for the respondents, Ms Carroll emphasised that all legislation benefits from a presumption of

constitutionality, and this presumption applies with particular force when considering legislation such as that impugned in these

proceedings. She referred to the decision of the Supreme Court in Lowth v. Minister for Social Welfare [1998] 4 I.R. 321 in which the

Court said:-

“The particular difficulty of establishing the unconstitutionality of legislation dealing with economic matters was

recognised by Kenny J. in Ryan v. The Attorney General [1965] I.R. 294, at p. 312 in the following terms:-

“When dealing with controversial social, economic and medical matters on which it is notorious views change from

generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the

common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the

citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the

citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the

presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with

particular force to this type of legislation.”

In relation to taxing statutes (which are in one sense the converse of social welfare legislation in that the former are the means by

which public revenues are exacted so that they may be dispersed in part at least pursuant to the welfare codes), O’Hanlon J. said in

Madigan v. Attorney General [1986] I.L.R.M. 136, at p. 151:-

“[I]t has been recognised, both in our own jurisdiction and in the United States, where the constitutional guarantees are

closely analogous to those provided by the Irish Constitution, that tax laws are in a category of their own, and that very

considerable latitude must be allowed to the legislature in the enormously complex task of organising and directing the

financial affairs of the State.””

46. Ms Carroll, on behalf of the respondent, submits that while these proceedings have been framed as a challenge to sections of the

Act of 2005 on the basis that they violate Article 40.1 of the Constitution, in truth they are a challenge to the underlying policy

decision of the Oireachtas that those children with a disability who are resident in an institution are ineligible for the payment of DCA,

on the basis of their disagreement with that policy. It is submitted that it is well established that the guarantee of equality before law

contained in Article 40.1 does not require identical treatment for all persons without recognition of different circumstances. The

Oireachtas is entitled to differentiate between the needs of different groups of persons, and provided that any distinctions drawn are

drawn on a rational basis, there is no violation of Article 40.1

47. Ms Carroll also laid emphasis upon the decisions of the Supreme Court in MacMathúna v. Attorney General [1995] 1 I.R. 484 and

the High Court in O’Reilly v. Limerick Corporation [1989] ILRM 181. In the latter case, Costello J. held that the manner in which the

resources of the State are to be distributed is a matter for the Oireachtas and not the courts. In the former case, which involved a

challenge to legislation which made provision for tax free allowances for single parents but not married parents, the Supreme Court

held that there were “… abundant grounds for distinguishing between the needs and requirements of single parents and those of

married parents living together and rearing a family together. Once such justification for disparity arises, the Court is satisfied it

cannot interfere by seeking to assess what the extent of the disparity should be”.

48. Similarly, in Lowth, the Court held:-

“It is no function of this Court to adjudicate upon the merits or otherwise of the impugned legislation. It is only necessary

to conclude, as this Court has done, that there were ample grounds for the Oireachtas to conclude that deserted wives

were in general likely to have greater needs than deserted husbands so as to justify legislation providing for social welfare

whether in the form of benefits or grants or a combination of both to meet such needs.”

49. In this case, it is submitted firstly that the applicants are treated in the same manner as persons who fall within the same

category i.e. children with a disability who meet the eligibility criteria contained in s. 186C(1) of the Act of 2005, and who are

resident in an institution. Insofar as those children are treated differently to children who are living at home, the Oireachtas has

determined that such difference in treatment is justified by reason of the difference in circumstances between children resident at

home and children resident in an institution. Ms Carroll submits that, in particular, the payment of the DCA has been guided by a

desire to recognise the additional expense and obligations that are placed on parents caring for children in their own home and by the

fact that care provided for children resident in an institution is provided out of public funds. Ms Carroll submits that this is a decision

that the Oireachtas is entitled to take and it is not a function of this Court to review the merits of such a decision. Furthermore, she

submits that insofar as it is argued that Mr Donnelly has been put to greater financial expense than a parent or guardian whose child

is resident at home, no evidence has been placed before the Court to support that argument.

50. Finally, insofar as the applicants argue that the impugned provisions are disproportionate to their objective, Ms Carroll submits

that the principle of proportionality applies to an infringement of a constitutional right and is a mechanism whereby the validity of

legislative and other actions can be assessed. It does not apply in the circumstances identified by the applicants. It would only arise

if the applicants had a constitutional right to payment of the DCA. There is no such constitutional right and nor do the applicants

argue that such a right exists.

51. As regards the case advanced that there is a constitutional omission in the Regulations, firstly, it is submitted that this is not

pleaded and the applicants do not have leave to apply for judicial review on this ground. Accordingly, the applicants must be confined

to the grounds upon which leave was obtained.

52. Secondly, it is submitted that the concept of “constitutional omission” is one that has arisen primarily in the context of identifying

the appropriate relief that may be granted after a finding of unconstitutionality. To the limit and extent that the concept has been

identified, it has been in cases in the criminal law sphere and not cases involving expenditure of public money. Ms Carroll submits that

the extension of this doctrine so as to extend the application of social or economic legislation to certain categories of persons,

specifically excluded by the legislation, would be a radical and novel departure that runs expressly contrary to long established

Supreme Court precedent. She submits that, in effect, there is no omission in this case; the Oireachtas has expressly chosen to

exclude a category of persons from being eligible for the payment of a particular social welfare benefit. Insofar as the applicants have

submitted that the Regulations do not reflect the intention of the Oireachtas, she submits that the contrary is the case; the

Regulations are entirely consistent with the legislative framework established by the Oireachtas.

ECHR Arguments

53. It is submitted that in order to establish any violation of the ECHR, it is necessary for the applicants to establish that they have

been discriminated against on the basis of sex, race, colour, language, religion, political or other opinion, national or social origin,

association with national minority, property, birth or other status (per Article 14). The applicants in this case rely on “other status”.

It is submitted that Henry is being treated in the same manner as all other children with a disability who are resident in an institution.

Alternatively, insofar as Henry is treated differently to other persons with a disability that arises by reason of the different factual

circumstances of residing in an institution. In the circumstances, no discrimination under Article 14 arises.

54. The respondents also place reliance (as do the applicants) on the decision of the Grand Chamber of the ECtHR in Stec v. United

Kingdom, a decision of 12th April, 2006. In that case, in considering the manner in which Article 14 applies to social security benefits,

the ECtHR held:-

“Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities”

between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may

in itself give rise to a breach of the article … A difference of treatment is, however, discriminatory if it has no objective

and reasonable justification; in other words if it does not pursue a legitimate aim or if there is not a reasonable

relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State

enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situation justify a

difference treatment.”

55. The ECtHR went on to say that in areas of economic and social strategy, Contracting States have a wide margin of appreciation

and concluded that in that case, the difference in pensionable ages between men and women was reasonably and objectively

justified.

56. Finally, as regards the case of Cameron Mathieson v. Secretary of State for Work and Pensions, the respondents attempt to

distinguish that case, firstly on the basis that it was concerned with the removal of a benefit from the applicant, and not his initial

qualification for the same. And secondly, the UKSC made certain findings arising from specific evidence placed before the Court in that

case in respect of which there is no similar evidence placed before this Court in these proceedings.

Discussion and Conclusion

57. I will deal first with issues of fact. While the central facts in this matter are not in dispute, the respondents contend that Mr

Donnelly has not advanced any evidence to support the proposition that he has incurred the same or even more expense in attending

to Henry’s needs while in hospital, than a person who is caring for an eligible child at home. That may be so as regards specific

figures, but the following was established by the evidence, or in any case was not disputed by the respondents:-

(1) One of Henry’s parents, Mr Donnelly, was required to attend and care for Henry for long hours on a daily basis;

(2) That care was very much “hands on” and some of it required a degree of training. It was not simply a case of sitting

at Henry’s bedside;

(3) In order to provide this care, one of Henry’s parents had to be absent from work, and, in the event, Mr Donnelly was

required to cease his employment in order to do so. However, for a two year period, Mr Donnelly was eligible to receive

and did receive illness benefit from the first named respondent. Coincidentally, payment of DCA commenced almost

contemporaneous with the cessation of payment of illness benefit to Mr Donnelly.

(4) In order to be with Henry to the extent required, Mr Donnelly was required to absent himself from the family home for

five days of the week, and at weekends Mrs Donnelly took over. This meant that the family was effectively “split” during

this period.

(5) Mr Donnelly was able to avail of accommodation provided by a charity adjacent to the hospital and so that expense

was saved as indeed was the expense of the alternative possibility i.e. travel to and from home to the hospital, at least

to the extent that it was not required on a daily basis

(6) Mr Donnelly did not contend that his other living expenses were increased by reason of his attendance in the hospital,

for example by reason of having to eat out instead of preparing meals at home. It is not unreasonable to infer that if he

had any significant increased living expenses, he would have identified the same.

58. Mr and Mrs Donnelly have devoted themselves heroically to Henry’s care, while at the same time caring for their other two

children. Undoubtedly, the manner in which they were required to care for Henry during his time in hospital must have been both

stressful and demanding in the extreme. However, unlike in Mathieson, no evidence was put before the Court to demonstrate the

actual expenditure or losses incurred by Mr Donnelly in caring for Henry while in hospital. While I do not doubt his word that he was

required to give up his employment for the period of Henry’s hospitalisation, no indication was given to the Court at all as to his actual

loss of earnings. The Court is simply invited to accept that he must have been at a loss, even though for much of this period he was

in receipt of illness benefit. In those circumstances, I cannot infer that he was at a loss, never mind hazard a guess at the extent of

that loss.

59. However, whatever about the specific loss of earnings involved, the central point being advanced on behalf of Mr Donnelly is that

he was required, during the working week, to spend all of his waking hours caring for Henry, and Mrs Donnelly did so at weekends. It

can therefore hardly be gainsaid that the time spent by Mr Donnelly and his wife in caring for Henry while he was in hospital was in

any way materially different to that required to be spent in caring for a child in the home.

60. In addition, it cannot be doubted either that parents who are obliged to travel to and from a hospital will incur at least that

expense which will not be incurred by a parent caring for a child at home. There will also be items of expenditure that are difficult to

recall, and all of which added up may amount to a reasonably significant sum.

61. As against all of that, it cannot be gainsaid either that Mr and Mrs Donnelly were spared the expense of maintaining Henry during

his time in hospital, and of course the State bore the expense of his actual medical care while Henry was in hospital. Disregarding the

medical care, no evidence was advanced by the respondents as to the value of the savings in what I might describe as the “ordinary”

maintenance of Henry, but such savings cannot be simply disregarded as being insignificant. Any parent of a new born child must

surely notice an increase in domestic expenditure following upon the birth and new arrival to the household.

62. So what conclusions should I draw from all of this? While exact figures are not available, Mr Donnelly had increased expenditure,

and possibly also some loss of earnings by reason of Henry’s hospitalisation. He also had some savings (the cost of maintaining Henry

at home) which have not been quantified either. If he were caring for Henry at home during the same period, he would a have had the

same loss of earnings (but not the sundry other expenses, such as those associated with travelling to the hospital), together with the

cost of maintaining Henry at home. In the latter case, these losses and costs would have been defrayed by payment of the DCA. If

Mr Donnelly had received payment of DCA while Henry was in hospital, he would have benefitted both from the savings in the cost of

maintaining Henry and the payment of DCA. While the exact figures are unknown, the fact of those savings is undeniable. And of

course that is the very reason advanced by the respondent in this case to justify the impugned provisions. Without the benefit of

exact figures in individual cases, or a general study of the financial impacts upon carers in these situations (such as the UKSC had in

Mathieson), the State has chosen a blunt instrument to assist those parents who undoubtedly experience loss and increased levels of

expenditure in caring for their child at home, but not those with a child resident in a hospital or other institution for more than thirteen

weeks in a year.

63. That being the case, the first question to be addressed is whether or not the difference in treatment of parents caring for

children in the home and parents caring for children in an institution amounts to a discrimination such as to be prohibited by Article

40.1 of the Constitution? The starting point, as Ms Carroll submits, is that the impugned provisions enjoy a presumption of

constitutionality. It is also correct to say that it is well established that this presumption enjoys particular force in the case of

financial or economic measures. It has long been accepted that decisions as regards the distribution of the resources of the State are

within the exclusive preserve of the Oireachtas. It is also the case that the Oireachtas is entitled, in deciding how to distribute those

resources, to discriminate between persons or classes of persons on the basis of an assessment by the Oireachtas of the needs of

those involved.

64. Mr Shortall has submitted that, in arriving at decisions of this type, the Oireachtas is bound to be proportionate in the manner in

which it discriminates against any individual or class of individuals and that in this case the discrimination is disproportionate, not least

because it affords the executive no discretion to assess the impact, and in particular the financial impact, on a parent of having to

care for a child on a full-time basis, while the child is resident in an institution. Ms Carroll on the other hand submits that the principle

of proportionality is not engaged because in order for it to be engaged, the right asserted must be a constitutional right, and there is

no constitutional right to any particular social welfare benefit. Mr Shortall does not dispute the latter proposition, but he argues that

he is asserting the constitutional right to equality guaranteed by Article 40.1 of the Constitution, and that any inference with that

right must be proportionate.

65. In this regard I must agree with Mr Shortall. The Oireachtas has identified a category of children who are eligible for DCA and this

includes Henry. However, it is then provided that DCA will not be payable in particular circumstances. Unless Article 40.1 is engaged,

the Oireachtas will be free to discriminate between persons in the same category – a category of persons which it itself has identified

– without reason or justification of any kind – in other words, indiscriminately. When treating differently with people within the same

class or grouping, it behoves the Oireachtas to discriminate between such persons on an objective and rational basis, that is

proportionate to an identified purpose.

66. Did the Oireachtas do so in this case? The purpose of the benefit is not in dispute and is evident from its title – DCA is intended

to alleviate the financial burden in caring for an eligible child at home. That being the case, it is not difficult to see why the

Oireachtas would exclude from those entitled to the benefit eligible children who are in the full-time care of an institution. The

position is a little more complicated for children who are resident in a hospital for an extended period. The Oireachtas clearly

envisaged such a possibility by including a hospital in the definition of “institution”. More than that however, presumably in an effort

to avoid the administrative complications that would be involved in short-term or relatively short-term hospital stays, the Oireachtas

has provided by way of the Regulations that DCA will remain payable in respect of hospital stays of up to thirteen weeks in any

twelve month period. This assumes that the child concerned has met all of the eligibility criteria in the first place, and that the benefit

has been paid up to the time of admission to the hospital concerned. For that reason, Henry did not qualify for the benefit until he

was eventually discharged home from hospital in November, 2017.

67. It can hardly be doubted but that the aim of avoiding what might amount to a duplication of expense is rational and objective,

and in the case of institutions other than hospitals, where the child may be permanently resident, proportionate. Is it proportionate in

the case of hospitals? The difficulty with this question is that the answer is likely to vary from case to case because the impact upon

parents affected by the impugned provisions will itself vary from case to case. These difficulties arise because the Oireachtas has not

given any discretion to the executive to decide whether or not the benefit might be payable in individual cases, having regard to the

hardship experienced. It has used a blunt instrument, and it seems to have done so very deliberately, having regard to the fact that

previously, entitlement to the benefit pursuant to the administrative circular of 1973 allowed for the exercise of such a discretion.

Nonetheless, there is in my view a justification for the disparity in treatment i.e. that the State is entitled to take measures to avoid

the potential duplication of maintenance of an eligible child, not least in circumstances where it is also fully funding the cost of the

medical care of the child. Moreover, in providing for payment of the benefit for up to thirteen weeks of hospitalisation in any one year,

the Oireachtas has exercised its discretion proportionately. The Supreme Court has already decided in MacMathúna, in the passage

referred to above, that once a justification for a disparity arises, the court cannot interfere by seeking to assess what the extent of

the disparity should be. Having arrived at that conclusion, this Court has no further role in adjudicating upon the merits of the

impugned provisions.

68. As to the arguments that are based upon the concept of constitutional omission, firstly, I must agree with Ms Carroll that since

this was not a ground upon which leave was granted, the applicants are not entitled to advance it by way of submissions at the

hearing of the matter. But even if I took a different view, I do not believe that this is an omission of the kind identified by Hogan J. in

B.G. v. Judge Murphy. There is no “mere accidental oversight in the course of statutory drafting” involved here. The Oireachtas

clearly considered whether or not children who would otherwise be eligible, but are resident in institutions, should be eligible for the

benefit, and chose to exclude them from the same. Similarly, the Oireachtas clearly expressly considered the position of children

detained in hospitals, and provided a limited exception (to the exclusion from benefit) for such children in the Regulations i.e. the

benefit would continue to be paid for up to thirteen weeks in any one calendar year. The decision to exclude eligible children from the

benefit in circumstances where they are detained for a longer period was clearly a deliberate decision and no accident. For this Court

to determine otherwise would be to enter into the legislative domain.

69. In his submissions, Mr Shortall also submitted that the arguments made on behalf of the claimant in Mathieson, which were

accepted by the UKSC, applied with equal force in the context of the Constitution arguments in this case. By this I understand him to

mean that there is no justification for the impugned provisions and therefore the discrimination between qualified children who require

lengthy in-hospital treatment and those who do not require lengthy in-hospital treatment cannot be either objective or rational, and

must therefore be considered to be arbitrary, invidious or capricious. The difficulty with this argument, at least in the Constitutional

context, is that in Mathieson, the UKSC had before it a considerable body of evidence upon which to base its conclusions. This

evidence was both of a specific and general character. It was specific insofar as there was undisputed evidence as to the increased

costs suffered by the claimant’s parents in Mathieson. Then there was the general evidence, which was at least uncontradicted, if

not accepted, as to the impact upon parents of attending to children who are in long-term hospital care. In this case there was no

specific evidence as to the former. As to evidence in general, it was not contended that this Court should accept the evidence

placed before the Court in the United Kingdom as being of equal application in this jurisdiction. While it might very well be the case

that the situation in the two jurisdictions is very similar, it is not open to this Court to adjudicate a constitutional dispute based upon

any such a supposition. “Evidence” gleaned from a court report in an another jurisdiction can hardly be treated as evidence in this

jurisdiction, unless accepted by the respondent, which it was not.

70. Finally, I turn to the ECHR arguments. It is first necessary to consider, as the UKSC did in Mathieson whether or not Henry has a

status falling within the grounds of discrimination prohibited by Article 14 of the Convention. First, it must be observed that it is not

contended that Henry is being discriminated against on the grounds of disability per se. I think that it could hardly be doubted but

that disability would, in general terms, constitute “other status” for the purposes of the Article 14 of the Convention but the

argument in this case is that within that general classification it is possible to identify “other status” for the purposes of Article 14, in

this case a child in need of lengthy in-hospital care and treatment.

71. In his judgement in Mathieson, Lord Wilson considered whether or not such an approach is contrived. Following a review of

authorities in the United Kingdom and the European Court of Human Rights he came to the “confident” conclusion that it was not a

contrivance but that a severely disabled child in need of lengthy in-patient hospital treatment had a status falling within the grounds

of discrimination prohibited by Article 14. As I mentioned above, he posed the question: “why should discrimination (if such it be)

between disabled persons with different needs engage Article 14 any less than discrimination between a disabled and an able bodied

person?”. Lord Mance came to the same conclusion by a simpler route stating simply that “a child hospitalised free of charge … for a

period longer than 84 days can be regarded as having a different status to that of a child not so hospitalised.”

72. On balance I am inclined to favour the proposition accepted by the UKSC in Mathieson. I do so for this simple reason. While

mindful of the fact that it is possible for almost any claimant, deprived of a benefit, to argue that he has a status for the purpose of

Article 14 (simply by reference to the criteria of eligibility for the benefit, or by which he was excluded from the benefit), once the

court concludes that an applicant has no relevant status, the claim is curtailed without any inquiry into the alleged discrimination.

Establishing a status does not mean that a claimant succeeds; it simply gives a claimant locus standi within which to ground a claim.

Unless therefore the status contended for is frivolous or lacks any reasonable basis, it is, it seems to me, preferable to accept a

status for the purposes of Article 14 than to reject it; the claimant will, after all, still have to satisfy the Court that there has been a

discrimination in treatment without objective and reasonable justification in order to succeed with his or her claim. I am therefore

prepared to accept that Henry, from the time of his birth up to his discharge in hospital in November, 2017, had a status for the

purposes of Article 14 being that of a severely disabled child in need of lengthy in-patient hospital care and treatment.

73. I turn then to consider whether or not the denial of DCA to Henry for the duration of his stay in hospital amounts to discrimination

on the grounds of “other status”. As noted above, in Stec v. United Kingdom, the ECtHR determined that in areas of economic and

social strategy, Contracting States have a wide margin of appreciation. A difference of treatment will be considered discriminatory if it

has no objective and reasonable justification or if it does not pursue a legitimate aim or if there is not a reasonable relationship of

proportionality between the means employed and the aims sought to be realised.

74. In Mathieson, the UKSC determined that there was no objective and reasonable justification for the withdrawal of DLA because

the claimant’s needs during his hospitalisation, were, in terms of parental attention, just the same as his needs both before and after

his hospitalisation. Furthermore, in order to continue to provide that parental attention, his parents had, necessarily, to incur ancillary

expenses and loss such as travel and meal costs and loss of earnings. Lord Mance concluded that the withdrawal of DLA after 84

days was not justified in the claimant’s case by any matching reduction in his needs for disability related attention by his parents.

75. The Court in Mathieson however was clearly very influenced by the evidence placed before it in particular by the reports of the

charities that were made available to the Court, which included the results of an online survey relating to the impact of the

curtailment of DLA in the United Kingdom. The Court did note that these reports were prepared for a particular purpose by the

charities concerned, and that it was required therefore to look critically at the reports. However, the Court also noted that since the

respondent had adduced no evidence in response to the same, the Court had nothing to set against the reports.

76. But in this case there is no evidence at all of the kind that was available to the Court in Mathieson. There is of course the

undisputed evidence of Mr Donnelly as to the extent of the care that he was required to provide to Henry. This is supported by the

report of Ms Murray. But the exemplary behaviour of Mr Donnelly (and for that matter Mrs Donnelly) in their care for Henry does not

mean that the reasons advanced by the respondent for the differentiation in treatment are not objective, reasonable or

proportionate. Even taking the claimants’ case at its height, there is no escaping the fact that the State is discharging the vast bulk

of Henry’s maintenance costs during his stay in hospital. The State is additionally paying for his medical care costs, but even leaving

that to one side the value in financial terms of the expenditure being incurred by the State in maintaining Henry while he is in hospital

may well be more than the DCA received by a parent looking after a child at home. This is obviously speculative, but even if it is not

so, if DCA were to be paid while a child is resident in hospital then it must surely be the case that the parent of that child, in financial

terms, is receiving more from the State than the parent who is looking after a child at home. There is no perfect answer to the

problem and the achievement of absolute equality of treatment as between the parents and children in each set of circumstances is

an almost impossible ideal. The best that the Oireachtas can do is to try and strike a balance and if it endeavours to do so in a

reasonable, objective and proportionate manner then the measures that it takes will not amount to a contravention of the rights

conferred by Convention. In my opinion the impugned provisions pass this test and the application for a declaration of incompatibility

must also be dismissed.

77. I cannot conclude this judgment without expressing my considerable sympathy for the applicants. As I have said above, Mr and

Mrs Donnelly have coped heroically and have put Henry’s needs ahead of theirs, undoubtedly at significant personal cost (and by this

I do not mean just financial cost). They embraced and discharged the challenges handed to them by the hospital authorities and

demonstrated exemplary love and care for Henry. This is evidenced, if evidence were needed, by the report of Ms Murray to which I

have referred above. Whatever about the comparison in financial burdens between Mr Donnelly and the parent of a child who has

been at all times resident at home, and about the quantum of which there is a lack of clarity, there can hardly be any doubt but that

the burdens generally shouldered by Mr and Mrs Donnelly in caring for Henry are likely to have been at least as great as those

endured by parents caring for an eligible child at home.

78. While the care afforded to Henry by the State in the provision firstly of medical care and secondly of what I might describe as

“ordinary maintenance” must be acknowledged, it is to me a great pity that the scheme of eligibility for DCA has proven to be so

inflexible as to deprive the applicants entirely of the benefit during Henry’s time in hospital. As I noted above, the Oireachtas has

chosen to use a blunt instrument to achieve the aim of avoiding the double maintenance of an eligible child. A more sophisticated

approach should be possible, and would be more likely to achieve a fairer result in a greater number of cases.