About this case:

• Citation:
  [2024] IESC 51
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Maurice Collins

Delivering the lead judgment for the Supreme Court, Mr Justice Maurice Collins emphasised that the Supreme Court’s decision on the means-testing regime “does not of course foreclose public debate on whether that regime requires reform or preclude the Minister and the Oireachtas from taking whatever steps they consider appropriate from a policy perspective to address the issues raised by the proceedings”.

Background

The first appellant, BM, was the second appellant’s (JM’s) mother and carer. JM was a minor suffering from disability, developmental and behavioural issues, requiring 24-hour care.

BM was in receipt of a half-rate carer’s allowance from 2007 in light of her receipt of one-parent family payment. When BM and JM’s father began living together as a family in 2020, BM ceased to be eligible for the one-parent family payment and claimed that it was confirmed to her by the Department of Social Protection that she would be entitled to carer’s allowance at the full rate.

Instead, BM received a reduced rate as both her own means and the means of JM’s father were taken into account. BM challenged this decision unsuccessfully before the Social Welfare Appeals Officer, and brought the matter before the Chief Appeals Officer pursuant to s.318 of the Social Welfare Consolidation Act 2005. In January 2022, the Chief Appeals Officer refused to review the impugned decision, finding that BM’s carer’s allowance had been calculated correctly.

The appellants brought judicial review proceedings asserting an entitlement to payment of the carer’s allowance at the full rate notwithstanding her means in light of the severity of JM’s disabilities. The appellants asserted that the Minister for Social Protection acted unlawfully in failing to make regulations under s.186(2) of the 2005 Act to provide for the payment of the full rate of carer’s allowance to persons such as BM, and that the payment of a reduced rate was inconsistent with the State’s obligations to vindicate the life of women in the home under Article 41.2 of the Constitution.

The High Court granted leave to the appellants to bring judicial review proceedings in March 2022.

The High Court 

Ms Justice Niamh Hyland dismissed the appellants’ application, concluding inter alia that the word “may” in s.186(2) conferred a power on the Minister rather than imposing a duty on her, that Article 41.2 did not dictate the level at which the State was required to provide such allowance and that it would trespass on the executive function of the State for the court to find that the Minister was bound to increase the allowance payable.

In October 2023, the Supreme Court granted leave to the appellants to bring a leapfrog appeal on two issues: 

1. Whether the Minister was obliged under s.186(1) or (2) to make regulations to wholly or partly dispense with means-tested calculation of carer’s allowance, and 

2. The extent to which Article 41.2 had any bearing on the proceedings and whether the High Court was correct to state that Article 41.2 could not be regarded as dictating the level at which the State must provide carer’s allowance or otherwise mandating the making of regulations by the Minister under the 2005 Act.

The Supreme Court 

Mr Justice Collins set out the relevant provisions of the 2005 Act and noted that s.182(2)(b) had effectively been part of the legislative regime governing carer’s allowance since its introduction in the 1990s.

The judge highlighted that a “striking” feature of s.186(2)(b) is that it give the Minister an unbounded power to designate a class or classes of persons for special treatment in relation to means testing, without giving any guidance or setting out any criteria for identifying such class or classes.

The appellants argued that the 2005 Act was a ‘remedial statute’ on the basis of McDonagh v Chief Appeals Officer [2021] IESC 33, [2021] 1 ILRM 385, contending that that case provided for a broad interpretation of s.186(2)(b) in light of the observations of Ms Justice Elizabeth Dunne that the 2005 Act was “designed to provide assistance to those who have a particular need for assistance over and above that of the average parent in circumstances such as these, by reason of having a child with a severe disability… [t]hus… as Dodd put it, it is legislation which seeks to put right ‘a social wrong and provide some means to achieve a particular social result’”.

Finding that those observations had “obvious resonance” in the case before him, Mr Justice Collins considered nonetheless that this classification of the 2005 Act did not “alter the fundamental purpose and scope of the interpretative exercise that the Court must undertake”, noting that the court’s role was not transformed “from interpreter to legislator” nor was it entitled to “rewrite the Act”.

Recognising that an apparently permissive statutory provision can in some circumstances operate to create a mandatory obligation, the judge emphasised that the starting point is the permissive language (“may provide”) in s.186(2)(b), as compared to “shall” in s.186(1).

Finding that in light of the detailed scheme in Chapter 8 of the 2005 Act for the payment of carer’s allowance, and the fact that s.182(2)(b) is silent as to the identification of the class or classes of persons that may benefit from the making of regulations, the type of benefit they could receive and the criteria for eligibility, and further in light of the power to regulate under s.186(2) being subject to sanction by the Minister for Public Expenditure, the Supreme Court found that the wider statutory context did not support the appellants’ contention that s.186(2) imposed a mandatory obligation on the Minister.

The court could not see what benefit a court order would bring to the appellants in any event, as the appellants had not suggested that the Supreme Court could direct the Minister to make regulations of a particular kind or on particular terms.

Turning to the next element of the appellants’ complaint, the court saw no parallel between the appellants’ circumstances and those in Reeves v Disabled Driver’s Medical Appeal Board [2020] IESC 31 and Cooke v Walsh [1984] IR 710, wherein “under-inclusive” regulations restricting or excluding the applicants’ entitlements had been made ultra vires the Minister. 

Finding that the appellants’ complaint was instead that the Minister failed to make regulations to enhance BM’s carer’s allowance to a rate higher than that payable to her under the 2005 Act and the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (SI 142/2007), Mr Justice Collins observed that the fact that the Minister had not done so did not have the effect of excluding persons who satisfy the statutorily prescribed conditions for receipt of carer’s allowance.

Mr Justice Collins concluded that as a matter of ordinary construction, s.186(2) was “truly permissive” and did not impose a duty on the Minister.

Article 41.2

Proceeding to the constitutional element of the appellants’ case, the Supreme Court considered that Article 41.2 has “long been the subject of controversy” dating back to the public and legislative debates on the draft Constitution. Mr Justice Collins noted that it has not yet been definitively decided as to whether Article 41.2 is limited to marital families, given the marital basis for the “family” in Article 41.1, finding that in light of the State’s position it was unnecessary to adjudicate on that issue.

The court analysed the import of the phrase “endeavour to ensure” in Article 41.2, contrasting it to the language used in the fundamental rights section of the Constitution and emphasising: “Had the drafters of the Constitution intended that the State should guarantee that mothers would not be compelled by ‘economic necessity’ (in the Irish text ‘uireasa’, which Ó Cearúil translates as ‘want’) to engage in work outside the home ‘to the neglect of their duties within the home’, they would no doubt have used that language”.

Mr Justice Collins continued: “In my view, the language used in Article 41.2.2 connotes an obligation of a quite different order, directing the State — and in particular the Government and the Oireachtas, whose constitutional function it is to set social policy and to make laws for the State — in those policies and laws to seek to support the right of mothers, as a class, not to be obliged to work outside the home, but without committing the State to the provision of any particular form or level of support or giving individual mothers any legally enforceable right to support from the State.”

The Supreme Court found that even if Article 41.2 had the effect of requiring the State to endeavour to ensure that mothers with children to rear or to be cared for are given economic aid by the State, the State has clearly given aid to BM in the form of inter alia carer’s allowance, child benefit payment and the carer’s support grant payable under Part 5 of the 2005 Act, and via the provision to JM of disability allowance.

Recognising that there are policy arguments against the aggregation of the means of a couple in this context, Mr Justice Collins pointed out that as a matter of law it appeared to be within the competence of the Oireachtas to provide for it.

The court concluded that Article 41.2.2 did not preclude or affect the application of the general means-testing regime provided for in Chapter 8 of the 2005 Act and the 2007 Regulations.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

BM & Anor v. Chief Appeals Officer & Ors [2024] IESC 51