Sinéad Gibney

The rights watchdog is appearing as amicus curiae in a significant disability rights case brought by Robert Donnelly and his child against the Minister for Social Protection and the State.

The case of Donnelly v. Minister for Social Protection & Ireland is focused on the situation where a father was deemed ineligible for DCA because his severely disabled child was resident in hospital for periods of time that were longer than specified in the legislation providing for the allowance.

The case could have significant impacts on how the constitutional guarantee of equality in Article 40.1 of the Constitution is interpreted and applied, particularly for people with disabilities.

In its legal arguments, published today, the Commission sets out its view that the denial of access to the DCA on account of the child’s hospitalisation should be viewed as discriminatory on the ground of disability.

It is because of the disability that the child has had to spend time in hospital and does not materially change the care provided to the child by his parents, the Commission argues – just the location.

The Commission states that “where a parent is charged with the continual care of a child with a severe disability who is in the ordinary course eligible for DCA, the role and responsibility of the parent does not, as a practical matter, stop and start according to whether the child is hospitalised”.

It concludes that “while acknowledging that the allowance is primarily intended to support the parent and child in the context of care at home with a limited exception for short periods of hospitalisation, it is not apparent to the Commission that the exclusion from access to the allowance of parents who must provide care at hospital over an extended period of time by reason of the severity of the child’s disability is rational and proportionate”.

Chief commissioner Sinéad Gibney said: “Our Constitution guarantees us equality under Article 40.1, but there is uncertainty about the principles governing its application to combat discrimination.

“This Supreme Court case highlights the real and lasting impact of that uncertainty on people with disabilities, parents, families and carers and offers an opportunity to bring about greater clarity.

“The demands placed on carers, the supports available to them and how these are given is of huge practical concern for families in Ireland with children reliant on being cared for and supported by family.”