A father and severely disabled son have lost their appeal to the Supreme Court over being denied home care allowance for more than two years while the child was in hospital.

The five-judge tribunal unanimously rejected arguments under Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights challenging the decision of the Minister of Social Protection to declare the child ineligible for the allowance for a long period of hospitalization.

Domiciliary care allowance is a monthly payment for children under the age of 16 who are severely disabled and require continuous care.

The Welfare Consolidation Act 2005 provides that the allowance is not paid when a child resides in an “institution” where care is publicly funded. The legislation provides some limited exceptions to the exclusion.

The boy was entitled to payment, due to a number of serious medical conditions, while residing at the home. The child was discharged from the hospital at the end of 2017 and the allowance has been paid since then.

The dispute centered on the suspension of funding during his long hospital stay, with father and son arguing that the legislation unjustifiably discriminates against them compared to parents caring for severely disabled children at home .

It was claimed that despite his hospitalization, the boy still needed 8 to 12 hours of care a day, provided by his mother and father. His father quit working to spend time with him in the hospital.

Both the High Court and the Court of Appeal dismissed the challenge.

Equality

The Supreme Court ruled on Monday that a legal classification that distinguishes parents caring for severely disabled children at home from those caring for such a child in hospital was not irrational and that it pursues a “legitimate aim”.

In delivering the court’s judgment, Madam Justice Iseult O’Malley said that a challenge to legislation based on the guarantee of equality can only succeed if the exclusion is based on a constitutionally illegitimate consideration that results by an irrational distinction where some people are treated as inferior for no justifiable reason.

“The legislator has the right to make political choices and must therefore have the right to distinguish between categories of people,” she said.

The exclusion here was not based on a suspect motive and the purposes of the allowance are legitimate political goals, she said.

These goals include encouraging parents in their decision to care for their child at home and providing financial assistance to those who would not otherwise be able to provide the additional care and attention required by their child, she added.

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The judge noted that the level of care provided to the boy by his parents was not only extremely onerous, but appeared, to some extent, to be expected by the hospital.

However, the exclusion of children who are kept for a long time in an institution, such as a hospital, at public expense is “not prima facie irrational”, she said.

Madam Justice O’Malley also rejected the father and son’s assertion that the burden of proof should be on the state to demonstrate the constitutionality of the legislation. This approach was not backed by legal authority and would be “inconsistent with the presumption of constitutionality”, she said.

Chief Justice Donal O’Donnell, Justice John MacMenamin, Justice Elizabeth Dunne and Justice Marie Baker concurred in the judgment.

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