https://www.irishtimes.com/crime-law/courts/2024/11/12/mother-and-profoundly-disabled-son-lose-supreme-court-appeal-over-means-tested-carers-allowance/
https://archive.ph/VoAZj
Article 41.2, whose potential effects were widely debated in the run-up to the referendum, says the State shall “endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.
Giving the court’s main judgment, Mr Justice Maurice Collins said the article imposes an “imperfect obligation” on the State and “simply does not provide a justiciable standard” sufficient to grant any legally enforceable right to State support.
He said the article’s effect is “simply to require the State [...] in its policies and laws to seek to support the right of mothers, as a class, not to be obliged to work outside the home”.
“It does not commit 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,” he said.
In any event, he said, the woman in this appeal was not obliged “by economic necessity” to work outside the home.
The mother effectively provides 24-hour care at home to her adult son who has significant developmental disabilities, hyperactivity and serious behavioural issues. His chronic sleep difficulties mean he requires care during the night.
The woman, who has no means of her own, was assessed in 2021 as entitled to €134 weekly, rather than the full allowance of €219, because her partner, the father of her son, earns €848 weekly.
In a judgment on Tuesday, the Supreme Court held that the High Court’s Ms Justice Niamh Hyland was correct to conclude that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.
He was unpersuaded by the contention that the carer’s allowance scheme is “under-inclusive”.
Mr Justice Collins noted the judgment resolves the legal challenge to the carer’s allowance regime but “does not of course foreclose public debate on whether that regime requires reform”. Nor does it preclude the Government from taking steps it considers appropriate to address the issues raised in this case, he said.