High Court dismisses judicial review claiming temporary protection recipients' welfare rights differ from citizens.

JUDICIAL REVIEW

[2025] IEHC 732

[2024 No. 1467 JR]

BETWEEN/

A.A. AND B.B.

Applicants

-AND-

THE MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL

Respondents

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 10th day of

December 2025

1. Does Council Directive 2001/55/EC of 20 July 2001 “on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof” (the Directive) prohibit the State from establishing social welfare assistance for recipients of temporary protection who benefit from direct State provision of full-board serviced accommodation in hotels and guest-houses, which differs from that available to other recipients of social welfare assistance?

2. Does Article 40.1 of the Constitution of Ireland permit the Oireachtas to enact laws which give recipients of temporary protection who benefit from being accommodated by and at the expense of the State on a serviced full-board basis in hotels and guest-houses different entitlements to social welfare assistance to those given to citizens and others who do not receive this benefit?

3. The two main issues raised by this application for judicial review are whether changes to Irish social welfare law enacted by ss.10 and 11(b)(ii) of the Social Welfare and Civil Law (Miscellaneous Provisions) Act 2024 (the 2024 Act) are invalid, either because they contravene Article 40.1 of the Constitution, or because they altered a provision of Irish law in a manner which is not permitted by Article 13.2 of the Directive. Were the effects of these changes to such as to contravene either equality of treatment of persons guaranteed by Article 40.1 of the Constitution, or a requirement imposed by Article 13.2 of the Directive? Did the purposes of these changes contravene the guarantee of equality of treatment in Article 40.1 of the Constitution?

4. The case advanced by A.A. and B.B. on the Directive was confined to a claim that Article13.2 of the Directive obliges the State to provide them with statutory disability benefit and carer’s allowance.

5. Section 60 of the International Protection Act 2015 (the 2015 Act), as originally enacted, gave all recipients of temporary protection in the State the full range of entitlements to insured benefits and means tested assistance which the Irish social welfare code confers on resident Irish citizens. This code is contained in the Social Welfare Consolidation Act 2005, as amended (the 2005 Act).

6. Prior to changes which were introduced following passing of the 2024 Act, beneficiaries of temporary protection who had been provided with serviced full-board hotel accommodation paid for by the State and who were also in receipt of social welfare assistance, enjoyed a considerable financial advantage over recipients of social welfare assistance who did not receive this extra State subvention.

7. These other recipients of social welfare assistance were and are expected to meet, from their own resources, their expenses of providing meals, light, heat and other benefits-in-kind which beneficiaries of temporary protection in serviced accommodation receive as part of their full-board package.

8. These recipients of social welfare assistance include Irish citizens and beneficiaries of temporary protection who do not avail of full-board accommodation in some 200 hotels which were block-booked by the State to meet the accommodation emergency occasioned by the large influx into Ireland of people who fled from the war in Ukraine.

9. A.A. and B.B. are Ukrainian nationals who fled the war in Ukraine in 2022. They were granted temporary protection in Ireland in accordance with the State’s obligations under the Directive. When they arrived here they were accommodated in a hotel in Dublin (the Hotel).

10. A.A. suffers from poor health. She is wheelchair-bound. She qualified for and was in receipt of statutory means-tested disability allowance. B.B. also suffers from poor health. He has diabetes, high blood pressure and a bad back. He qualified for and was in receipt of statutory means-tested carer’s allowance relating to his care for A.A.

11. A.A. and B.B. continue to reside in the Hotel. They are provided with meals on a fullboard basis at the expense of the State. They make a compulsory weekly contribution towards defraying the cost of their meals. This contribution is fully funded by the State.

12. The effect of ss. 10 and 11 of the 2024 Act is that non-nationals granted temporary protection by the State are not entitled to receive any social welfare assistance under the 2005 Act, other than limited supplementary welfare allowance based on urgent or exceptional need while they remain resident in a “designated accommodation centre.”

13. These provisions were commenced on 12 March 2024. In September the Hotel was “designated” as an “accommodation centre” for the purposes of the relevant legislation. All of the 200 or so hotels and guest-houses which are being used by the State to provide serviced hotel accommodation and meals to those displaced to Ireland as a result of the war in Ukraine have been designated as “accommodation centres.”

14. As a result of this designation A.A. and B.B. are no longer eligible to receive disability and carer’s allowances while they continue to reside in any “designated accommodation centre.” Each of them now receives a weekly extra-statutory payment of €38.80. Each of them also gets a subvention of €70.00 per week. This goes directly to the hotel to cover a compulsory contribution of €10.00 per day towards the cost of meals. They are also entitled to receive further financial aid in the form of statutory supplementary welfare allowances if they establish either an exceptional need for a once-off payment or a situation of urgency.

15. A.A. and B.B. claim in these proceedings that this change in the law was incompatible with Article 40.1 of the Constitution and is therefore invalid. They say that this change means that the State does not treat like in the same way as like and that the Oireachtas has drawn an unfair and irrational distinction between residents in “designated accommodation centres” and others in comparable circumstances who continue to be entitled to the types of assistance which they no longer qualify to receive.

16. They claim that the purpose of the changes introduced in 2024 is to “pressurise”

A.A. “out of her accommodation” in the Hotel and that this was an improper statutory objective.

17. They also claim that this change to their eligibility for social welfare allowances is invalid because it constitutes an impermissible alteration of statutory provisions which transposed requirements of the Directive into domestic law. They seek damages for loss which they claim that they suffered as a result of failure by State to implement the Article 13.2 of the Directive properly.

18. They seek a declaration that the State has failed to transpose Article 13.2 of the Directive into Irish Law, insofar as the changes introduced in 2024 affect them.

19. They claim that because they established that, but for provisions of the 2024 Act, they would meet eligibility criteria for receipt of disability and carer’s allowances, it follows that the amounts payable to recipients of these allowances represent “the necessary assistance in terms of social welfare and means of subsistence” for the purposes of the Directive and that the change in the law in 2024, which resulted in withdrawal of their entitlement to these allowances, was therefore wrongful.

20. Their claim based on grounds of failure to treat them as equal before the law, as guaranteed by Article 40.1 of the Constitution, is confined to an assertion that they are being treated differently to other categories of persons who remain eligible to receive the social welfare assistance which they have been deprived of and who receive of free full-board serviced accommodation which is paid for by the State.

21. A.A. and B.B. argue that the Directive gives them a right to reside in the State and that therefore they should be given rights to social welfare assistance which equate with those given to comparable lawful residents. They refer to beneficiaries of international protection declarations. On receipt of their international protection declarations, these residents become eligible to receive the social welfare assistance which has been denied to A.A. and B.B. since September 2024.

22. They point out that some beneficiaries of declarations of international protection continue to reside in accommodation provided by the State free of charge on a serviced full-board basis in hotels and guest-houses and are eligible to receive disability allowance and carer’s allowance while they are resident in this accommodation.

23. They say that the circumstances of A.A. are comparable to those of persons who are entitled to receive disability allowance and who are resident in hospitals and other similar institutions where the incidental costs of their maintenance are met by the Health Service Executive. They claim that A.A. should be entitled to receive disability allowance on the same basis as these persons.

24. The grounds on which leave was granted to A.A. and B.B. to challenge the validity of the changes made in 2024 did not include any claim based on breach of Article 20 of the Charter of Fundamental Rights of the European Union (the Charter). This claim was first advanced in legal submissions filed for the purposes of the hearing before me.

25. These submissions also introduced an assertion that the changes made by the State to their social welfare entitlements in 2024 contravened rights guaranteed by Article

26 of the Charter.

26. I cannot entertain claims that the changes made by the State in 2024 were in breach of Article 13.2 of the Directive on grounds which were not advanced in their statement grounding their application for leave to seek judicial review.

27. B.B. also claims that a refusal by a “designated” appeals adjudicator to approve what is described in these proceedings as a once-off exceptional needs payment requested by him was invalid. He claims that this decision was perverse and that there was a flaw in the reasoning of the decision-maker which invalidated that decision.

28. I am dismissing this application for judicial review. Based on the claims advanced by A.A. and B.B., the answer to the question posed in para. 1 of this judgment is “no”;

the answer to the question posed in para. 2 of this judgment is “yes”; and the answers to the questions posed in para. 4 of this judgment is “no.”

29. I am not persuaded that the laws which provide different social welfare assistance to recipients of temporary protection in designated accommodation to that which is available to others who are or are not being provided with serviced accommodation and meals paid for by the State have any sort of discriminatory purpose or adverse effect which would justify a finding of breach of Article 40.1 of the Constitution.

30. A.A. and B.B. continue to be provided with “social welfare and means of subsistence”

under an extra-statutory scheme. They also may become eligible for supplementary welfare allowance if they can establish an urgent case and they are eligible for single payment supplementary welfare allowances if they establish that these are necessary to meet exceptional needs.

31. In arriving at this conclusion, I have taken into account the purpose and effect of payments made to A.A. and B.B. under the extra-statutory scheme. It was not argued before me that their entitlements under this scheme could not be considered in determining whether the statutory changes introduced in 2024 infringed their right to equality before the law.

32. The evidence does not establish that the “social welfare and means of subsistence”

currently being made available by the State to them is inadequate to meet their dayto-day and exceptional needs, or that they are now disproportionately worse off in terms of overall State social support than they would be if they moved out of the Hotel and into a different type of housing accommodation.

33. I have concluded that the examples of other residents of the State recognised by law as entitled to social assistance which A.A. and B.B. rely on to illustrate their claim that the Oireachtas has enacted laws which discriminate against them are not appropriate comparators.

34. They have not proved that the level of social welfare assistance currently being provided to them is inadequate to meet obligations imposed on the State by Article

13 of the Directive. Article 13 of that directive does not impose any obligation on the State to pay beneficiaries of temporary protection “necessary assistance in terms of social welfare and means of subsistence” in the form of or by reference to the eligibility conditions attached to the current statutory disability and carer’s allowances.

35. The decision to refuse an exceptional needs or urgency-based supplementary welfare allowance payments was valid. B.B. has not established that this decision was invalid on any of the grounds advanced in the notice of application for leave to apply for judicial review.

36. The decision-makers were entitled to take the view that B.B. had not established an exceptional need or case of urgency which would justify payments sought under ss.

201 or 202 of the 2005 Act.

37. If there was any doubt or confusion about the basis for these decisions or aspects of matters raised in his application for supplementary welfare payments, a further explanation could have been sought from the decision-makers.

38. The 2005 Act provides a review and revision mechanism which permits submission of further evidence in support of claims and correction of legal and factual errors in decisions by decision-makers who are asked to sanction payment of exceptional or urgent supplementary welfare assistance under ss. 201 or 202 of that Act. It follows that it is seldom appropriate to challenge the validity of these decisions in judicial review proceedings.

39. Article 40.1 of the Constitution provides as follows: “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

40. Article 20 of the Charter provides that “[e]veryone is equal before the law.” The Charter applies to all measures which enact or give effect to European Union Law.

These measures must safeguard fundamental rights recognised by the Charter.

41. In order to assess the strength of the case made by A.A. and B.B. that changes to the social welfare code breached their right to equality before the law, as guaranteed by Article 40.1 of the Constitution, it is necessary both to understand the effects of those changes and to assess the legislative rationale of the Oireachtas. Did the Oireachtas legislate to achieve some impermissible purpose which disregarded the constitutional guarantee of equality before the law? Were the effect of these changes not merely disadvantageous to A.A. and B.B., but discriminatory?

42. The Irish social welfare code is contained in the 2005 Act. This Act has been amended on numerous occasions. It repealed and replaced an earlier consolidation statute which was enacted in 1993. The 1993 Act, in turn, repealed and replaced an earlier consolidation statute which was enacted in 1981.

43. The architecture of this code has remained the same over many decades. It provides for payment of various types of “assistance” to those who lack means. It also provides for payment of various types of “benefit” to those who make sufficient social insurance contributions to qualify to receive these payments.

44. Part 3 of the 2005 Act governs eligibility to receive “social assistance”, as described in s.139 of that Act. This provision lists various types of means-tested assistance such as jobseeker’s allowance, disability allowance, non-contributory pensions, carer’s allowance and supplementary welfare allowance.

45. Disability allowance is paid to persons between 16 years of age and retirement age who are substantially restricted in undertaking employment as a result of disability.

Excluded are those who, but for disability, would not be available for work in insurable employment or self-employment, such as prisoners.

46. Disability allowance was originally introduced into the social welfare code by s.13 of the Social Welfare Act 1996. Section 13(3) of that Act excluded from eligibility residents in Health Board funded hospitals and other similar institutions for the duration of any such residence, with an exception in the case of those undergoing medical or other treatment of a temporary nature for a period not exceeding 13 weeks.

47. An amendment effected by s.20 of the Social Welfare Act 1999 continued the entitlement of any recipient of that allowance who was admitted into a hospital or similar institution on or after 1 August 1999, and who would otherwise be entitled to that allowance at the time of admission.

48. A further amendment effected by s.8 of the Social Welfare and Pensions Act 2005 gave a weekly payment of €35, described as the “disability allowance personal expenses rate”, to the residual category of residents in hospitals and similar institutions and who did not qualify for continued payment of disability allowance while residing there.

49. These provisions excluding this residual category of long term residents in hospitals and other institutions receiving State subvention via Health Boards and the Health Service Executive from entitlement to receive disability benefit were retained in the 2005 Act. They remained operative until finally repealed with effect from 3 January 2007: see s.11(1) of the Social Welfare Act 2006.

50. Carer’s allowance is a means-tested (both by reference to the means of the carer and the beneficiary of care) allowance, usually payable to a person who resides with and provides full-time care to a person who has a disability which is such as to require continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or such as to require continual supervision in order to avoid a danger to himself or herself. The full-time carer is, by definition, not available to take up employment outside the care environment.

51. Supplementary welfare allowance was first introduced in 1975. This allowance replaced the home assistance which was introduced in 1939. Supplementary welfare allowance is the basic form of social welfare assistance. In general, it is paid to those who are both eligible to receive it and are not in receipt of other forms of primary assistance, such as jobseeker’s allowance back to work allowance or disability allowance. However, additional payments of supplementary welfare allowance may be made to supplement other allowances.

52. Section 189 of the 2005 Act provides as follows: “Subject to this Act, every person in the State whose means are insufficient to meet his or her needs and the needs of any qualified adult or qualified child of the person shall be entitled to supplementary welfare allowance.”

53. Section 201 of the 2005 Act provides as follows: “A designated person or deciding officer may, in any case where the designated person or deciding officer considers it reasonable, having regard to all the circumstances of the case, so to do, determine or decide that supplementary welfare allowance shall be paid to a person by way of a single payment to meet an exceptional need.”

54. Section 202(1) of the 2005 Act provides as follows: “(1) Nothing in section 190, 191,

193 or 198 shall prevent the payment of supplementary welfare allowance in an urgent case and, in determining or deciding whether an allowance is payable by virtue of this section and the amount or nature of the allowance, the Executive a designated person or deciding officer shall not be bound by anything contained in sections 195 to 198 and Part 4 of Schedule 3 or in any regulations made under this Chapter which appears to the designated person or deciding officer inappropriate in the circumstances of the case.”

55. Part 2 of the 2005 Act governs eligibility to receive “benefit” funded by contributions to the Social Insurance Fund. The various types of social insurance “benefit” are described in s.39 of that Act. They include disability benefit, jobseeker’s benefit, occupational injuries benefit and carer’s benefit.

56. Most Irish residents are citizens or immigrants from the common travel area or the European Union and reside here as of right. Others reside here by permission of the State. Examples are overseas students, those who have been given work visas, refugee or subsidiary protection declarations, or granted permissions to remain here under ss.49, 56 and 57 of the 2015 Act. Others are persons displaced as a result of the war in Ukraine who have been given “temporary protection” under s.60 of the 2015 Act. Others have entered the State without permission or have overstayed their permissions, or are awaiting decisions on applications for international protection declarations.

57. Section 246(6) of the 2005 Act specifies that Irish citizens and other classes of persons who have a right to reside in the State under European Union Law, or in accordance with permissions given under various sections of the 2015 Act and the Immigration Act 2004 are deemed to have a right to reside in the State for the purposes of that Act. Those who do not come within these categories are deemed not to fulfil the “habitual residence in the State” requirement imposed by the 2005 Act as a condition of receipt of many benefits and allowances.

58. Residents who require permission to reside in the State, but do not have a necessary permission, are treated as not habitually resident and therefore ineligible to receive any of the forms of social assistance described in s.139 of the 2005 Act, and other benefits such as child benefit. The validity of these provisions were upheld in the context of an application by parents of an Irish citizen who had entered the State and had not yet obtained the benefit of a declaration of refugee status such as to render them eligible to receive child benefit because they were parents of that citizen in X. v Minister for Social Protection ([2019] IESC 82) [2021] 3 I.R. 528.

59. The Directive was adopted by the European Union after the wars which followed the break-up of former Yugoslavia in the 1990s. These wars caused significant mass displacements of populations into Member States of the European Union. The long title and recitals to the Directive indicate its purposes and scope. These provisions are relevant to Irish domestic legislation which gives effect to the provisions of this Directive.

60. The purpose of the Directive, as indicated in Recital (2), is to set up “exceptional schemes” to offer “immediate temporary protection” in cases of “mass influx of displaced persons who cannot return to their country of origin”. Recital (8) specifies that it “is therefore necessary to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and to take measures to promote a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons.”

61. Recital (15) specifies that “[t]he Member States’ obligations as to the conditions of reception and residence of persons enjoying temporary protection in the event of a mass influx of displaced persons should be determined. These obligations should be fair and offer an adequate level of protection to those concerned.”

62. Recital (9) is important. It specifies that “[t]hose standards and measures are linked and interdependent for reasons of effectiveness, coherence and solidarity and in order, in particular, to avert the risk of secondary movements. They should therefore be enacted in a single legal instrument.” This “single legal instrument” is the Directive.

63. Member States have an option to provide more favourable provisions to those enjoying temporary protection in accordance with the Directive than the minimum standards which it mandates: see Recital (12). If Member States offer different levels of social welfare protection to applicants for temporary protection, it is inevitable that some of those seeking protection will choose to go to Member States which offer more generous assistance. That is likely to bring about results which are not consistent with effectiveness, coherence and solidarity.

64. Temporary protection is not asylum. Recital (13) specifies that “[g]iven the exceptional character of the provisions established by this Directive in order to deal with a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, the protection offered should be of limited duration.” Recital (14) specifies that “[t]he existence of a mass influx of displaced persons should be established by a Council decision and the conditions for the expiry of that decision should also be established.”

65. The operative part of the Directive gives effect to the policy set out in these recitals.

Articles 12 and 13 of that Directive specify the range and standard of rights and entitlements of persons who have been given temporary protection in Member States to engage in trade and employed work, have access to accommodation and receive “necessary assistance in terms of social welfare and means of subsistence.”

66. Article 12 provides as follows: “The Member States shall authorise, for a period not exceeding that of temporary protection, persons enjoying temporary protection to engage in employed or self-employed activities, subject to rules applicable to the profession, as well as in activities such as educational opportunities for adults, vocational training and practical workplace experience. For reasons of labour market policies, Member States may give priority to EU citizens and citizens of States bound by the Agreement on the European Economic Area and also to legally resident thirdcountry nationals who receive unemployment benefit. The general law in force in the Member States applicable to remuneration, access to social security systems relating to employed or self-employed activities and other conditions of employment shall apply.”

67. Article 13 provides as follows: “1 The Member States shall ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing. 2 The Member States shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care. Without prejudice to paragraph 4, the assistance necessary for medical care shall include at least emergency care and essential treatment of illness. 3 Where persons enjoying temporary protection are engaged in employed or self-employed activities, account shall be taken, when fixing the proposed level of aid, of their ability to meet their own needs. 4 The Member States shall provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence.”

68. Article 32 of the Directive provides as follows: “1 The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2002 at the latest. They shall forthwith inform the Commission thereof. 2 When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.”

69. It is in the nature of implementation of this type of Directive that many of the measures taken to provide temporary assistance may result from ad-hoc arrangements. It would be difficult to devise prescriptive rules governing sourcing and provision of assistance such as emergency accommodation and subsistence to a large number of displaced persons. It might be necessary to make payments or provide facilities, subsistence or benefits in kind under extra-statutory schemes.

70. Ireland adopted the Directive in 2003.

71. The current provision of Irish law introduced to give direct effect to obligations imposed by the Directive in the areas of immigration, employment and social welfare is s.60 of the 2015 Act, as amended by s.11 of the 2024 Act.

72. Section 60(10) of the 2015 Act, as originally enacted, provided as follows: “A displaced person….shall be entitled – (a) to seek and enter employment, to engage in any business, trade or profession and to have access to education and training in the State in the like manner and to the like extent in all respects as an Irish citizen,

(b) to receive, upon and subject to the same conditions applicable to Irish citizens, the same medical care and the same social welfare benefits as those to which Irish citizens are entitled”.

73. The effect of this provision was to treat “displaced persons” (as defined in the Directive) resident in the State as having the same rights to social welfare benefits and assistance as Irish citizens.

74. Until commencement of ss.10 and 11 of the 2024 Act and designation of their accommodation in accordance with the amendments to the 2015 Act effected by these sections, those granted temporary protection who were provided by the State with serviced accommodation and meals in hotels and guest-houses were eligible to receive means-tested social welfare allowances, such as jobseeker’s assistance, disability allowance, carer’s allowance and supplementary welfare allowance.

75. Section 10 of the 2024 Act inserted a new s.247D into the 2005 Act which provides as follows: “(1) A person who has been given a permission to reside in the State under section 60(6) of the Act of 2015, which permission is valid, shall be disqualified from receiving any assistance specified in section 139(1), other than supplementary welfare allowance, in so far as it relates to the payment of that allowance in accordance with section 201 or 202, for any week or part of a week during which he or she is resident in a designated accommodation centre.”

76. Section 11 of the 2024 Act amended s.60 of the 2015 Act by inserting in subsection

(1) a definition of “designated accommodation centre” as meaning “a premises designated under subsection (14A)(a);”.

77. Section 11 also amended 60(10) of the 2015 Act as follows:“(i) by the substitution of ‘a person who has been given a permission to reside in the State under subsection (6), which permission is valid,’ for ‘a displaced person to whom subsection (2)

applies’, and (ii) by the substitution of the following paragraph for paragraph (b):

‘(b) to receive, upon and subject to the same conditions applicable to Irish citizens, the same medical care and, other than while he or she is resident in a designated accommodation centre, the same social welfare benefits as those to which Irish citizens are entitled, and’ ”.

78. Following the Russian invasion of Ukraine in February 2022, the Council of the European Union decided to introduce temporary protection for Ukrainian nationals displaced into Member States. This temporary protection, which is subject to review, has been continued to date.

79. Ireland currently suffers from an acute lack of available domestic housing accommodation to buy or rent. This shortage exists in both the private sector and in public authority housing. It is common knowledge that a very large number of Ukrainian nationals fled to Ireland in 2022 and that the State was obliged to blockbook numerous hotels and guest-houses and provide them with full-board serviced accommodation in order to fulfil its obligations under the Directive.

80. An affidavit of the Assistant Secretary to the Minister for Children, Equality, Disability, Integration and Youth discloses that as of January 2025 Ireland had the highest number of temporary protection registrations per 1,000 of population in Western Europe at 20.04 per 1,000. The EU average is 9.5 per 1,000.

81. As of December 2023, over 101,200 people had been granted temporary protection in Ireland. Of that number, 74,500 were being provided with accommodation by the State. Of those, 57,700 were being accommodated in fully serviced-accommodation.

The average weekly number seeking accommodation between October and December 2023 was 76. By January 2025 the total number of people granted temporary protection reached 110,575. In addition, Ireland received a significant increase in applicants for international protection during 2023. This deponent states the level of support being provided to beneficiaries of temporary protection was unsustainable and putting enormous pressure on the accommodation system so that by early 2024 the State was on the verge of not being able to offer any accommodation to newly-arriving beneficiaries of temporary protection.

82. This deponent also states that, following the amendments to s.60 of the 2015 Act in 2024, the Minister designated the 200 or so hotels which were being used to provide serviced full-board accommodation in order to promote greater independence and integration of beneficiaries of temporary protection who have been in Ireland for an extended period. These measures brought about a significant change. As a result of them, the number of beneficiaries of temporary protection in State-provided accommodation in hotels reduced from 60,000 in November 2023 to just over 25,000 in March 2025.

83. A.A. and B.B. are a married couple in their early fifties. Following the Russian invasion of Ukraine they came to Ireland, availing of the Directive. They have resided in the State and have been provided with full-board serviced hotel accommodation since 12 April 2022.

84. In May 2022 A.A. applied for disability allowance. This allowance was granted to her in July 2022. Her weekly personal entitlement to disability allowance was assessed at €208. This weekly payment was based on the fact that she was assessed as having no “weekly means” as defined in s.209(1) of the 2005 Act, for the purposes of s.211(2) of that Act.

85. B.B. applied for means-tested carer’s allowance in respect of care of A.A. from 14 July 2022. This allowance was granted to him on 10 August 2022. At that time the current weekly amount of this allowance payable to him was assessed at €224. This was based on the fact that they were assessed as having no “weekly means” as defined in s.179(1) of the 2005 Act, for the purposes of s.181(2) of that Act.

86. This allowance was paid to B.B. on the basis that A.A. has a medically certified disability which required continual supervision and frequent assistance throughout the day in connection with normal bodily functions, or continual supervision in order to avoid danger to her which was likely to require full-time care and attention for at least 12 consecutive months.

87. B.B. is also in poor health. He is unlikely to be in a position where he will become fit for work. If he were not found to be eligible to receive carer’s allowance, it seems likely that he would have established eligibility for disability allowance, rather than for jobseeker’s allowance.

88. The benefits-in-kind which A.A. and B.B. received from the State in the form of serviced accommodation and meals were not reckonable in calculating their means because they were not prescribed for this purpose as a “non-cash benefit” by any regulations made under Article(s) 1(2) of Parts 2 and 5 of Schedule 3 of the 2005 Act.

89. On 9 September 2024 the Hotel was designated as an accommodation centre under s.60(14A)(a) of the 2015 Act. All of the 200 or so hotels and guest-houses used to provide serviced accommodation to recipients of temporary protection were designated as accommodation centres on that date.

90. As a result of this designation, A.A. and B.B. ceased to be entitled to receive disability and carer’s allowances with effect from 22 October 2024. B.B. also ceased to be eligible for free travel under an administrative scheme and was obliged to return his free travel card. This was because he was no longer eligible to receive carer’s allowance. A.A. also ceased to be eligible to avail of this free travel scheme because she was no longer eligible to receive disability allowance.

91. If A.A. and B.B. move out of designated accommodation, they will once more be entitled to receive disability and carer’s allowances. Free travel will also be restored to them.

92. Since 22 October 2024 A.A. and B.B. are each in receipt of a weekly payment of €38.80 under an administrative scheme administered by the Minister for Social Protection on behalf of the Minister for Children, Equality, Disability, Integration and Youth. They also each receive the benefit of a €10 perdiem contribution which residents in designated accommodation centres must pay to service providers towards the cost of meals supplied. These payments are made by the State directly to service providers.

93. It will be difficult for A.A. and B.B. to obtain alternative accommodation because there is a severe shortage of affordable rental housing accommodation in the private sector and in the public sector. This difficulty is faced by both citizens and by noncitizens. Many citizens who are in work or in receipt of social welfare allowances are obliged to reside with their parents or relatives because they cannot find affordable private rental housing accommodation or publicly funded social housing.

94. Notwithstanding this difficulty, it is apparent from the large reduction in the number of beneficiaries of temporary protection in serviced hotel accommodation in the period between November 2023 and March 2025 that most of those who were in serviced full-board hotel accommodation have succeeded in obtaining housing accommodation elsewhere.

95. If A.A. and B.B. wish to move from the Hotel, they will require State assistance. If they can source alternative accommodation they will be entitled to receive rent supplement, as provided for by s.198(3) of the 2005 Act. They will then be in the same position as Irish Citizens who are in receipt of disability allowance and carer’s allowance. They may need further social welfare support in the form of supplementary welfare allowance to meet other urgent or exceptional needs arising from their move.

96. Unlike A.A. and B.B., these Irish citizen recipients of assistance do not currently have the benefit of the value of serviced bed and board, paid for by the State. Noncitizens receiving social welfare assistance, such as beneficiaries of international protection and temporary protection who do not rely on the State to provide them with serviced full-board accommodation in hotels are at the same comparative disadvantage. They must use their social welfare allowances to defray costs of meals and of utilities and other facilities which the State provides to A.A. and B.B. free of charge.

97. The principles on which the courts evaluate whether a statutory provision contravenes the constitutional right to equality before the law are set out concisely by the Supreme Court in the judgment of O’Malley J. in Donnelly v. Minister for Social Protection ([2022] IESC 31) [2023] 2 I.R. 415 at para. [191], pages 480-481 as follows:

“The authorities do demonstrate support for the following propositions: (i) Article

40.1 provides protection against discrimination that is based on arbitrary, capricious or irrational considerations. (ii) The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1. (iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality. (iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy. (v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required. (vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party's case.”

98. As was pointed out by O’Malley J. in Donnelly at para. [197], p. 482: “The guarantee in Article 40.1 is grounded upon the respect due to all human persons. The question here must in the first instance be whether the legislation draws a distinction on the basis of intrinsic aspects of the human personality such as those referred to in Murphy v. Ireland [2014] IESC 19, [2014] 1 I.R. 198.”

99. Article 40.1 of the Constitution does not require that the Oireachtas must enact laws which provide a uniform basis of qualification of citizens and non-citizens resident in Ireland for entitlement to receive social welfare assistance or to provide all classes of residents with uniform types or levels of assistance. The Oireachtas has discretion to treat different categories of persons differently when enacting laws which provide social welfare assistance.

100. The State may also establish extra-statutory administrative schemes which provide for payments of assistance to categories of resident non-citizens who are not eligible to receive statutory social welfare assistance.

101. It would be impossible to devise a workable social welfare scheme which achieves uniform equity between amount of payment of an allowance and means or between amount of payment of an allowance and need. The State has no constitutional obligation to provide uniform social welfare assistance to all residents.

102. While the Oireachtas cannot create social welfare rules which discriminate on sexual, racial or ethnic lines, it can enact provisions that differentiate between the rights to social welfare assistance of those who are within the State as of right and those who are here by permission. Those provisions can differentiate between those who are here temporarily and those who are here permanently, and between rights to assistance conferred on those who the State is assisting by other subventions or social supports and rights to assistance conferred on those who do not receive such support.

103. Such laws may incentivise deployment of those capable of working into the workforce and other changes which reduce cost and adverse social impacts of support provided by the State to those who reside here on a temporary basis.

104. Such laws may also discourage what is described as “welfare tourism.” The Oireachtas may ensure that the State does not assume a disproportionate burden, by providing social welfare assistance which is more favourable than that required to fulfil obligations arising from international or European Union commitments to take displaced persons. The Oireachtas may ensure that social welfare assistance to beneficiaries of temporary protection is comparable with that provided by other Member States. These are legitimate policy objectives of legislation.

105. The courts can only interfere with exercises of these legislative choices where members of a class or category of persons can demonstrate in a compelling way that the resulting law treats them unfairly.

106. In this case, as in Donnelly, the question to be answered by this Court is whether or not the legislation complained of drew a distinction which worked against those in the position of A.A. and B.B. by reference to some difference in social function which made that distinction legitimate. A legislative distinction which treats people differently will be legitimate if it is rational and pursues an objective which the law regards as legitimate. That will not be the case if there is “’no objective and reasonable … relationship of proportionality between the means employed and the aim sought to be realised’ (the ECtHR in Stec v. United Kingdom(2006) 43 E.H.R.R.

47 at para. 51, pp. 1028–1029).”

107. The evidence does not demonstrate that A.A. and B.B. have been unfairly subjected to laws which do not have a legitimate legislative purpose. There is no factual basis for their assertion that the changes introduced in 2024 were for the purpose of forcing them out of housing accommodation, as opposed to encouraging and promoting integration and greater independence. There was nothing improper in the Oireachtas in removing an economic disincentive to efforts to greater independence and integration of beneficiaries of temporary protection; especially those who have been in Ireland for an extended period.

108. By 2024 the war in Ukraine had gone on for over two years. The Oireachtas was entitled to take the view that provision of full social welfare assistance entitlements of recipients of temporary protection had the effect of encouraging and embedding their use of free emergency accommodation and the associated supports in hotels as a permanent feature. The Oireachtas was also entitled to take the view that continuation of a policy of providing beneficiaries of temporary protection with both full-board hotel accommodation on a long term basis and a full range of social welfare allowances to those availing of that accommodation option was unsustainable.

109. The Oireachtas was entitled to pursue new policy objectives by providing different types and levels of social welfare assistance to beneficiaries of temporary protection availing of State-funded serviced full-board hotel accommodation.

110. These changes also eliminated what was perceived as a social welfare cushion which gave beneficiaries of temporary protection in serviced full-board hotel accommodation paid for by the State more favourable treatment than other recipients of the same social welfare assistance, including other beneficiaries of temporary protection, who were not availing of this type of accommodation.

111. Even where recipients of social welfare assistance are residing with parents or relatives, it may be assumed that they use much of that assistance to defray the costs of their food and keep. They do not get the benefit of both social welfare assistance and a State subsidy which covers direct and incidental costs of their food and keep.

112. Turning to the issue of proportionality, comparators may be relevant to an analysis of whether the effect of changes made in 2024 were so discriminatory as to produce unequal treatment before the law in contravention of Article 40.1 of the Constitution.

113. Assuming that comparators are relevant, it was necessary for A.A. and B.B. to demonstrate that the changes to their social welfare entitlements in 2024 put them at a substantial disadvantage, when their financial position is compared to that of others who remain in receipt of disability and carer’s allowances, but do not have the collateral benefits associated with use of State-funded serviced full-board hotel accommodation.

114. No evidence has been tendered which demonstrates that if A.A. and B.B. were to succeed in obtaining alternative accommodation, they would have substantially greater means at their disposal to meet their needs than those which result from payments which they receive under the extra-statutory scheme. They have not established that they are now financially disadvantaged, by comparison with citizens of and other Irish residents who are in receipt of disability and carer’s allowances, but do not enjoy the benefits of serviced full-board accommodation in hotels.

115. I have already referred to the lack of legislative underpinning of this extra-statutory scheme. The challenge advanced by A.A. and B.B. to the validity of ss.10 and 11 of the 2024 Act does not contest the lawfulness of the arrangements put in place in 2024 on grounds that this element of those arrangements lacks sufficient legal underpinning to guarantee equality before the law, or to comply with the requirements of Article 13.2 of the Temporary Directive. I am therefore precluded from considering such issues.

116. In my view this is not an ex-gratia scheme, such as that which was considered to be legally irrelevant in the context of a different type of constitutional challenge in Electricity Supply Board v. Gormley [1985] IR 129.

117. These payments must be taken into account in any assessment of whether the legislative changes made in 2024 in fact resulted in some discriminatory inequality of social welfare allowance treatment of the cohort of beneficiaries of temporary protection who remain in designated accommodation centres.

118. I do not accept the validity of the argument advanced by A.A. and B.B. that their social welfare entitlements should be identical to those of beneficiaries of declarations of international protection who continue to avail of serviced accommodation in the “direct provision” system.

119. I was not provided with evidence that some beneficiaries of declarations of international protection continue to receive the same package of fully serviced accommodation and meals benefits in hotels as A.A. and B.B. It may also be that others in need of emergency accommodation are put into this type of accommodation and remain in it while they await proper housing from the private or public supply. These are temporary measures.

120. Assuming this assertion to be factually correct, what would prevent the Oireachtas from introducing changes to the social welfare code which would have the effect of eliminating advantages which this cohort of social welfare recipients enjoy over other social welfare recipients, including beneficiaries of international protection who do not avail of serviced full-board accommodation in hotels?

121. In my view the Oireachtas could introduce such changes into the social welfare code, provided that they do not produce results which are shown to be disproportionately unfavourable in terms of overall State social support. Such changes would also have the effect of eliminating any social welfare advantages which this cohort enjoy over recipients of social welfare assistance who do not enjoy the collateral benefits of State-funded serviced full-board accommodation.

122. A policy objective of social welfare legislation which disincentivises long term use by lawful residents of what was originally provided by the State to them as short-term emergency accommodation when they were asylum seekers, and incentivises them to integrate into the mainstream of housing provision is not inherently discriminatory.

123. Furthermore I do not accept that A.A. or B.B. should be equated for social welfare assistance purposes with permanent residents receiving medical care or treatment in hospitals and similar institutions who are entitled to receive disability allowances.

124. The legislative policy which resulted in the changes introduced in 1999 and the eventual abolition of the special rule applicable to long-term residents of Statefunded hospitals and similar institutions in 2006 related to rights of persons with disabilities. Why should those who are obliged, as a result of lack of means or poor health to live in a State-funded hospital or other similar institution, lose their right to receive disability allowance in order to pay for their keep?

125. The situation of those with disabilities who are obliged to reside in a hospital or similar institution as a result of health misfortune is completely different to that of A.A. If A.A. is obliged to move to a hospital or an institution to meet her health needs she will be entitled to receive disability allowance.

126. While A.A. and B.B. do not enjoy good health, they are not obliged to reside in a hospital or similar institution. They are temporary residents in the State who have been displaced from their country of origin by a war. The duration of that war has resulted in an extension of their temporary presence in the State. It is obvious at this stage that indefinite residence in State-funded serviced full-board hotel accommodation is not a sensible solution which addresses their housing needs.

127. They have the option of either staying in designated accommodation, which has one social welfare assistance consequence, or of moving out and into other housing accommodation, which has a different social welfare assistance consequence. Either of these courses may or may not be to their financial advantage in terms of overall State social support. If they elect to move out, they may have difficulty in finding suitable alternative accommodation, but they are not prevented from moving.

128. In considering the case made by A.A. and B.B. that the 2024 changes to the Irish social welfare code contravene the State’s obligations under the Directive, I am confined to considering issues identified in their application for leave to seek judicial review. They confined themselves to making a case that the Directive mandates that they must receive the types of social welfare assistance they were determined by social welfare authorities to be eligible to receive prior to September 2024.

129. The State is obliged to provide social welfare payments of some sort in order to comply with its obligations under of Article 13.2 of the Directive. A.A., B.B. and others eligible to receive payments under the extra-statutory scheme are entitled to resort to public law remedies to enforce their right to receive those payments. These payments can be taken into account in assessing the adequacy of provision of “necessary assistance in terms of social welfare and means of subsistence” for the purposes of the Directive.

130. No case was made, nor was evidence presented, with a view to establishing that the State is now providing A.A. and B.B. with a level of assistance which is less than that which is objectively necessary in order to meet the State’s obligations under the Directive. Nor was any case made that the current provision by the State to them of social welfare support contravened European Law by reason of absence of legislative foundation, or failure to lay down procedures for objective verification of equivalence of their current and previous State-provided social supports.

131. I cannot entertain arguments that the changes in 2024 resulted in a breach by the State of Articles 20 and 26 of the Charter or examine whether the State’s obligation under the Directive requires that all recipients of temporary protection be entitled to identical forms of social welfare assistance, or provide equivalent overall social protection. Had such a case been made, it may be the European Law would require a somewhat different legal approach to that appropriate to a determination of whether the Oireachtas has enacted a law which contravened Article 40.1 of the Constitution.

132. I do not enjoy any free-standing jurisdiction to depart from the claim as advanced in accordance with the leave given by this Court, or to enquire into or even consider such issues.

133. The argument advanced by A.A. and B.B. is premised on an assumption that the standard of “necessary assistance in terms of social welfare and means of subsistence” mandated by Article 13.2 of the Directive obliges the State to provide beneficiaries of temporary provision with the same types and levels of social welfare assistance as it makes available to citizens and others. They claim that because they qualified for disability and carer’s allowances in 2022 and were paid these allowances until 2024, the State is obliged to continue to provide these supports at these levels in order to meet its commitments under the Directive.

134. The Directive does not provide any legal basis for this premise.

135. Articles 12 and 13 of the Directive must be read together. They give those enjoying temporary protection rights to access the benefits of social security systems relating to employed or self-employed activities. The reference to “unemployment benefit” in Article 12 is concerned with an entitlement of Member States to prioritise claims of EU citizens and legally resident third State nationals who are in receipt of unemployment benefit to take up jobs in the labour market.

136. These provisions do not oblige Member States to provide those enjoying temporary protection with access to permanent housing or the same social welfare assistance as citizens or other categories of authorised residents. They do not specify that Member States must give recipients of temporary protection “access to social security systems” which provide identical “social welfare and means of subsistence”

to that available to other classes of resident who qualify to receive assistance. If that were the intention, Article 13 would have explicitly provided that beneficiaries of temporary protection must be given access to the full benefit of laws of Member States governing rights of resident citizens of EU Member States to necessary assistance in terms of social welfare and means of subsistence.

137. The alterations to social welfare entitlements of Ukrainian nationals receiving temporary protection in designated accommodation which were introduced in 2024 do not affect any benefit to which they may be entitled as a result of contributions to the Social Insurance Fund or other social welfare entitlements of habitual residents, such as entitlement to receive child benefit. These are provided for in Article 12, which mandates access to the social security systems of Member States relating to employed or self-employed activities. Article 13.2 does not include any similar requirement.

138. Instead, Article 13.2 envisages entitlement of those enjoying temporary protection to “necessary assistance in terms of social welfare and means of subsistence.” The expression “necessary assistance in terms of social welfare and means of subsistence” in Article 13.2 is not intended to mean that “social welfare” and “means of subsistence” must be treated as separate concepts. This wording imposes a single requirement to provide for the person enjoying temporary protection by providing money, goods or services, or a mixture of these, which will meet their needs.

139. Whether the level of assistance provided by a Member State is adequate to meet the needs of beneficiaries of temporary protection can be objectively determined.

Subject to this, Member States implementing the Directive can determine the “what and how much” of “necessary assistance.” They must have a margin of appreciation in determining these matters and in formulating legal rules governing schemes for such assistance.

140. Access to suitable accommodation, means to obtain housing, and assistance in terms of social welfare and means of subsistence are all aspects of social protection. A.A. and B.B. have advanced their claims on the narrow basis that laws which preclude the Minister for Social Protection from continuing to pay them disability and carer’s allowances are invalid. This placed focus on one particular aspect of the package of social protection which the State is providing to them.

141. Their counsel argued that the obligation imposed by Article 13.1 of the Directive to give “access to suitable accommodation or, if necessary, receive the means to obtain housing” is separate from the obligation imposed by Article 13.2 of that Directive to “make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources”. They asserted that collateral benefits provided as part of provision of housing accommodation cannot be taken into account by Member States, when determining the type or extent of “necessary assistance” which they will provide “in terms of social welfare.”

142. I do not accept that this argument is valid. The level of direct social welfare subvention which may be “necessary” to support beneficiaries of temporary protection may be related to the extent of other benefits which they receive from a Member State, including benefits which they would otherwise have to fund themselves, using receipts from social welfare assistance. For example, if, as is the case here, an accommodation package provides substantial ancillary benefits which a recipient of temporary protection would otherwise meet out of social welfare receipts, these benefits can be taken into account in determining the types and levels of social welfare assistance which will provide what is “necessary” in order to comply with the terms of Article 13.2 of the Directive.

143. The Directive does not expressly require that recipients of temporary protection who reside in designated accommodation centres receive identical social welfare assistance to that made available to citizens, recipients of temporary protection who are not resident in designated accommodation centres, or other classes of noncitizen who have been provided by the State with the same type of accommodation.

The narrow ground on which leave to bring this application for judicial review was obtained precludes me from entertaining any argument that European Union law requires that it must be interpreted in such a way.

144. While A.A. and B.B. have been deprived of statutory entitlements while they continue to reside in designated accommodation, this is not of itself sufficient to establish that the Directive requires that their former entitlements be restored, or that they receive a payment uplift to any level greater than the weekly payments which they are currently receiving as damages for breach of the State’s obligations under the Directive.

145. B.B. also asserts that a decision by a social welfare review officer dated 21 October 2024 on an appeal brought by him under s.323 of the 2005 is invalid. This decision upheld a determination by a designated person which refused an application by him for an exceptional needs payment under s.201 of the 2005 Act.

146. The grounds relied on in the statement required to ground their application for judicial review assert failure to have regard to withdrawal of the disability and carer’s allowances previously paid, disregard of a situation of alleged obvious hardship, and regard for an irrelevant consideration relating to the place of residence of A.A. and B.B. The statement of grounds and the grounding affidavits and exhibits used in the application to this Court for leave to apply for judicial review do not identify any solid basis for these vague complaints.

147. The notice of application for leave to obtain judicial review and the grounding affidavits state that the application by B.B. was for an “additional needs payment” of €70 for assistance with the cost of special dietary meals and medicines. This information appears to have been taken from a letter from a deciding officer dated

27 September 2024 which refers to “an Additional Needs Payments for assistance with cost of meals €70 and for cost of medicines”. Oral argument at the hearing of this application before me proceeded on the basis that €70 was all that was being sought.

148. In fact, B.B.’s application for supplementary welfare allowance, which has been exhibited, did not nominate what sum was being sought or that assistance in the form of a single payment was being requested. The only reference in the application form to €70 related to the €70 per week which A.A. and B.B. were each receiving from the State and contributing towards their meals.

149. In late August 2024 B.B. completed and dated an application form seeking for supplementary welfare allowance on grounds that the €38.80 weekly allowance which he and his wife would receive from 9 September 2024 would not be adequate to cover their needs for food, medicine and other items. One of the initial decisions on this application indicates that this application was treated as received on 25 September 2024.

150. B.B. made the case that he and his wife could not eat the food provided for them by the Hotel because of their health conditions and dietary needs and had to buy their own food. He also claimed that they needed care items for their disabilities, such as special phone holders, additional wheelchair accessories and other items, such as cups and bibs for feeding, pads for inflamed skin and other skincare products, and medicines as per a list attached, and medicines which could only be obtained from Ukraine. He said that they had to pay for medicines prescribed by a doctor. He complained that Irish health providers refused to service his wife’s intravenous port and that they had to buy expensive supplies to do this from specialist websites. He claimed that delays in the Irish medical system resulted in his wife consulting a private doctor and that she consulted a specialist in or from Ukraine.

151. He stated that he needed large-size clothing and footwear from specialist stores and specialist diabetic socks which required periodic replacement. He stated that his wife’s neck corset had broken recently, requiring a replacement. He needed special batteries for his hearing aid and money to maintain an Irish mobile phone service so that he could use the internet and stay connected with relatives in Ukraine. He also asked about education and that his wife needed books and stationery for an English course and a laptop. They had purchased a refurbished laptop.

152. This application was referred to two designated persons for decision. A letter dated

26 September 2024 from one of these deciders referred to “your application for an Additional Needs Payment” towards the cost of medical needs. It advised him that Additional Needs Payments included exceptional needs payments under s.201 of the 2005 Act and urgent needs payments under s.202 and that these payments were only payable under exceptional circumstances.

153. The decision-maker went on to state that “I have considered the circumstances of your application for assistance towards the cost of medical needs and have determined that the need you have outlined is not exceptional for the following reason. The need you have outlined is not exceptional as responsibility rests with another Government Department. Medical needs are the responsibility of The Health Service Executive (HSE). I would advise that you contact the HSE regarding this. I am therefore writing to advice you that your application has been refused.” This

decision-maker notified him that if dissatisfied, “you may request a Review setting out the grounds for your request. This should be made in writing… within 21 days from the date of this letter”.

154. A further decision letter dated 27 September 2024 referred to B.B.’s application and, after an identical preamble, stated that this decision-maker had “considered the circumstances of your application for assistance and have determined that the need you have outlined is not exceptional for the following reason(s): The needs outlined come under the responsibility of another Government Department/Agency. Ukrainian Crisis Temporary Accommodation team (UCTAT) have responsibility for Designated Accommodation Centres. In the first instance, you are advised to raise any queries regarding dietary issues such as the payment of meals €70 directly with the accommodation manager or via the complaints procedure. In relation to additional costs associated with medication it is open to you to explore the possibility of cover under the GMS Hardship Scheme and discuss what options are available with the HSE and your dispensing pharmacy. In general, where other state agencies have a primary responsibility assistance under the Supplementary Welfare Allowance Scheme is not normally considered as an alternative or additional source of support.”

155. This letter also went on to advise that the application was being refused and of the statutory rights to a review and appeal in greater detail. It advised that he could request a review by a deciding officer and a right of appeal to the Chief Appeals Officer; that these could be separate requests and that it was not necessary to await the outcome of a review before initiating an appeal.

156. The appeal process, as provided for in s.323 of the 2005 Act, is to an authorised or designated person appointed by the Minister. The review process is governed by s.324. This allows revision of a previous decision in light of new evidence or facts having a bearing on a previous refusal. It also allows for correction of a decision where that decision is based on a legal or factual mistake.

157. The decision as set out in the letter dated 27 September 2024 was appealed by B.B.

He provided the decision letter, a letter from their GP dated 8 October 2024 which disclosed that his wife suffers from a severe cervical spondylosis with nerve compression and is wheelchair-bound. She also has an implanted intravenous port which necessitates specialist care. He was stated to have Type 2 diabetes, severe high blood pressure and raised BMI and to have lumbar spine compression. He also provided patient medication lists dated 10 October 2024 from a pharmacy, pharmacy stickers dated 9 and 10 October 2024, a bill from a consultant in Naas hospital for a consultation with A.A. dated August 2024 which was paid in cash, and a copy prescription issued to her on the same date.

158. The reasons advanced by B.B. for his appeal were as follows: “We do not have enough funds to purchase the medicines prescribed by doctors. All possible schemes have already been used. There are many types of medications, most of which are covered by the medical card, but the payment of €38.80 does not cover all our expenses. The scheme proposed to me is not suitable, as is clearly shown by the pharmacy receipts… I need clothing (a waterproof warm jacket) and footwear (the sole of my previous pair has worn out) for the cold season, and large sizes need to be specially ordered. My wife has a severe neurological disease, uses a wheelchair, and has special needs. Her feet get very cold, and she requires additional means to keep her feet warm in the wheelchair.”

159. It is difficult to understand the basis for this judicial review challenge. I am not prepared to consider arguments which were not advanced in the grounds set out in the application for leave to apply for judicial review, such as that the reasons advanced for decision did not engage with requests such as that for funding to provide credit to use a mobile phone. These points cannot be used to establish that the decision was so perverse that no reasonable decision-maker could have come to the same conclusion. If B.B. required some further explanation or was unclear on any aspect of these decisions he could go back to the decision-makers for clarification.

160. As medical card holders A.A. and B.B. are entitled to free medical care and free prescription medicines subject to a maximum Government levy of €15 each per month. The pharmacy stickers do not show cost of their medicines. The Government levies shown on the pharmacy stickers can be avoided for sums in excess of €15 per month for each of them. If he needs a specific payment to cover the expense associated with any claimed exceptional or urgent need he can identify the item or expenditure, particularise the special or urgent need for that item or expenditure and the cost, and address in detail why that cost is not covered by other assistance available from State agencies.

161. The statutory review procedures enable an applicant for supplementary welfare allowance under s.201 and 202 of the 2005 Act give great scope for having an existing application which has been declined reviewed at any time by providing new information which shows that a payment which was previously declined as exceptional or not required by urgent need is in fact required or by showing some mistake of fact or law was made. Applicants are also unrestricted from making fresh applications for these allowances.

162. Decisions of this sort, which in former times were made by relieving officers and home assistance officers, and which can be revised on a statutory review, will rarely raise the sort of issues of lack of administrative fair procedures which would justify intervention by the High Court exercising judicial review jurisdiction. Most of the issues which factual or legal issues that are likely to arise can be dealt with in a statutory review under s.324 of the 2005 Act or by making a fresh application. If there are queries about reasons for these decisions, or queries that facts have not been taken into account, have these can be addressed by the original decisionmakers or the reviewers.

163. There was nothing in the decision being challenged or the material on which it was based which justified claims that this decision-maker ignored the fact that A.A. and were no longer in receipt of disability and carer’s allowances or that this decisionmaker took an irrelevant consideration into account by pointing out that they should take up dietary requirements with their service provider. The claim that she ignored an obvious situation of hardship and that her decision was perverse is not demonstrated.

164. It was not necessary for the decision-makers to expressly refer to the change in their financial circumstances in either the decision of 27 September 2024 or the

decision of 21 October 2024. This change was known by those decision-makers. It was referred to by B.B. in his application form as the reason why he was making his application.

165. The appeal decision which is being challenged by B.B. dated 21 October 2024. The

decision-maker referred to the review submission and supporting documentation, and the “reports from the Designated Person” outlining the reasons for the refusal.

Presumably, these were the decision letters dated 26 and 27 September 2024. The

decision-maker referred in particular to the “adherence to legislation and guidelines in the original decision.” She pointed out that exceptional needs payments under s.201 of the 2005 Act are only made under exceptional circumstances. She then rejected the appeal in the following terms: “The result of this review is that I am upholding the determination of the Designated Person for the following reasons: - You are living in a Designated Accommodation Centre and any issues relating to nutritional needs/diet should be discussed with the management of that Centre. – The Department of Health have responsibility for access to medical items... You should apply for them through the GMS (Hardship) Assistance scheme.”

166. The fact that A.A. and B.B. were continuing to reside at the Hotel was relevant to their claim for supplementary welfare allowance to pay for food. The claim that the appeal decision-maker disregarded a situation of obvious hardship is not borne out by the terms of her decision, which was to uphold the decision of 27 September 2024 for the reasons set out. Her core point was that the central issues of need identified by A.A. and B.B. related to dietary and medical items, and that these should be pursued with management of the Hotel and State agencies involved in the provision of health services. She explained that the test of exceptionality could not arise where this alternative recourse was available.

167. This judgment is being delivered electronically. My provisional view is that the costs of these proceedings should be awarded against A.A. and B.B. In the absence of notification to the Central Office, or to me through my Judicial Assistant, signifying a wish to apply for some other order relating to costs within three weeks of issue of this judgment, an order awarding the State respondents the costs of their defence of this application will issue. If a notification is received the case will be listed for legal argument on the appropriate costs order.