Supreme Court: Appeal over means-test reduction of carer’s allowance dismissed

By Gillian O'Hanlon BL, case reporter

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

Bar Council launches ‘manifesto for fairness’ ahead of general election

Representatives from Fine Gael, Fianna Fáil, Sinn Féin, the Green Party, Labour and the Social Democrats were presented with copies of the manifesto at a justice hustings event yesterday evening.

In the 25-page document, the Bar calls for a fair system for all, regardless of means, pointing in particular to the areas of civil legal aid, family law and criminal justice, as in need of significant investment, due to increasing demand.

Investment and allocation in the justice system has decreased as a proportion of total government spending since 2019/2020 from 4.2 per cent to 3.2 per cent, the manifesto notes.

The Bar warns that this shrinking level of investment is reflected in the overstretched services available to citizens seeking access to the courts, leading to significant delays and impacting on timely access to justice.

As well as investment, the Bar has called for the next government to bring forward a legislative response to third-party litigation and multi-party actions, and to move forward with a referendum on a United Patent Court for Ireland.

Bar Council chairperson Seán Guerin SC said: “Our justice system is suffering the effects of sustained under investment, and the impact of this has been compounded by our growing population and strong economy.

“Wait times for criminal cases in the circuit court exceed 100 weeks in seven offices around the country. Legal aid applications have increased by 48 per cent in the last two years. Ireland has the lowest number of judges per capita in the 44 Council of Europe member states.

“All of this paints a picture of a justice system in chronic need of modernisation and investment.

“One certain route to the diminution of our system of rule of law is through the inadequate resourcing of our courts and legal system.

“For this reason, The Bar of Ireland is appealing to candidates and parties in the upcoming general election to commit to an appropriate level of investment, so that public confidence in the rule of law can be maintained.”

Most Irish voters open to alternatives to imprisonment

The Irish Penal Reform Trust (IPRT) commissioned RED C to gauge public opinion on a range of issues related to prison and the criminal justice system ahead of the general election later this month.

More than eight in 10 (81 per cent) of adults said they believe it is important for the next government to prioritise alternatives to imprisonment in cases of non-violent offences, with broad support across all major political party voters.

Only 26 per cent of respondents said they view prison as an effective tool for addressing non-violent crime, underlining a strong appetite for more innovative approaches, such as specialist courts and community service.

The poll also reveals that by wide margins, voters of the main political parties question the use of prisons as the best way to deal with crime.

When asked about how they would spend an annual budget of €10 million to best tackle crime, over one in three would prioritise person-centred interventions such as additional drug treatment places, extra youth workers, and more consultant psychologists. Fewer than one in 10 see additional prison spaces as a priority.

In general, people are sceptical about the merits of expanding prison capacity. A significant 68 per cent of respondents feel that expanding prison capacity will not reduce crime. Instead, they believe tackling the underlying causes of crime is more effective.

The poll reveals that when given a choice of how to deal with people who commit non-violent offences, respondents preferred to divert them away from prison, with the net top three choices being to refer people with underlying issues to specialist courts for drugs, sentencing people to community service or for the person who committed the offence to provide reparation to the victims.

Saoirse Brady, IPRT executive director, said: “In the coming weeks we expect to hear more of the same political rhetoric that the next government must be harder on crime.

“That is why we commissioned this poll in advance of the general election to take the public temperature and find out what people on the ground really think when it comes to the use of prison and the criminal justice system.

“Clearly this is not a black and white issue — people recognise the complexities and underlying causes that result in many people coming into conflict with the law and often leading to imprisonment.

“IPRT is extremely encouraged to see positive appetite for change with four in five people believing it’s important to focus on alternatives to prison for people who commit non-violent offences in the next programme for government. Only one out of four believes prison is effective at reducing non-violent crime.”

She continued: “The results demonstrate that not only do people understand the social issues that may lead some people to offend in the first place including mental health challenges, trauma, addiction, the cost in the rise of living and homelessness for example, but they also indicate an underlying sense of compassion.

“There was a clear awareness of current levels of prison overcrowding being poor — 48 per cent — and most people do not consider prison to be a magic bullet to stop offending. Many realise that prison is a damaging experience given that 51 per cent of those polled thought that people left prison worse than when they entered.

“An overwhelming majority also thought that people released into homelessness were more likely to reoffend.

“Unfortunately given the experience in other places, we suspect this to be true here as well. During a housing crisis and in the absence of stable accommodation and appropriate health and social supports, it is very challenging to move on with your life after prison.

“Two-thirds believe that crime should be tackled at its root causes instead of expanding prisons. In fact, roughly two thirds of those polled felt that people with mental health challenges or addiction difficulties should receive treatment in a dedicated facility instead of being sent to prison.

“This common-sense approach would not only result in improved outcomes for individuals and their families but would also save the taxpayer millions of euros each year and ultimately result in safer communities in the longer-run given what we know to be effective in preventing reoffending.”

Ms Brady concluded: “IPRT hopes that these findings will inform a robust debate over the coming weeks and put to bed a lot of the assumptions about the general public’s views of the penal system.

“Finally, we hope that this new information will empower the incoming government to shift its thinking, make politically brave decisions and invest in meaningful solutions that will result in both a more effective and humane penal system as well as ending cycles of disadvantage and harm faced by so many in the criminal justice system.”

Eight promotions at Dillon Eustace

The new of counsel are Aine McCarthy, Joe O’Doherty and Sarah Cassidy in the asset management and investment funds team, Catherine Hicks in the corporate and M&A team, and Karen Jennings in financial regulation.

The new associates are Richard Looby, Ross Canning and Simon Keogh, all in the asset management and investment funds team.

The firm said: “These promotions reflect continuing strong client demand in our asset management and investment funds, corporate and M&A and financial regulation teams.

“It also demonstrates the firm’s commitment to nurturing our talent internally and supporting their professional development.

“We wish them all the very best in the next stages of their careers.”

Dublin and Monaghan bombings case granted leave in High Court

Paddy Askins, son of Patrick Askin, who was killed in the 1974 bombings, is challenging the Garda Commissioner and the Minister for Justice over their alleged failure to co-operate with the Police Ombudsman’s investigation.

The Police Ombudsman is in the final stages of preparing a thematic inquiry into wider allegations of collusion between the so-called Glennane Gang and British security forces in the mid-1970s.

Belfast-based KRW LAW LLP acts on behalf of families and survivors of the Dublin and Monaghan bombings.

Solicitor Kevin Winters said: “It was bad enough for the families and survivors to learn that gardaí had failed to hand over intelligence files to PONI. However then to learn recently that in fact nothing at all had been transferred was very demoralising.

“It makes a mockery of all previous ministerial pontification about the Irish state cooperating with their northern counterparts to ensure transparency. Regrettably, there’s been nothing of the sort.

“It’s depressing that, after all this time, families have to traipse to court to force the Irish authorities to hand over files on the worst ever atrocity of the Troubles.

“Having done so, it’s very welcome that today the High Court made orders granting leave to take this case to the next stage.

“The systemic indifference to the plight of these families triggered judicial intervention against both the Garda commissioner and the justice minister.

“We now call upon the authorities to do the right thing on foot of today’s conceding leave and make those files available as soon as possible.

“Any continued failure to act on this only serves to fuel suspicion that the Irish as well as the British authorities are covering up collusion allegations.”

A separate civil action against the British government is at an advanced stage.

Galway pupils compete in Empire Mock Trial Competition

The 14 students from Coláiste Iognáid — Cian Dolan, Mark Egan, Tara Flynn, Niamh Gleeson, Beth Kelly, Lisa Lennon, Kate Leonard, Rachel Lyons, Olivia Maye, Layla McCann, Róisin Ní Fhátharta, Erin O Conner, Juno Sheridan and Ted Silke — headed to the US with teachers and coaches Stephen Reilly and Maeve Clancy.

The competition involved arguing two prosecution rounds and two defence rounds on charges of bribery of a witness and the subordination of perjury.

Each round was a substantive hearing lasting in excess of three hours broken down into a pre-trial motion to exclude past actions of a witness; opening and closing arguments; and the direct examination of three witnesses and cross-examination of three witnesses.

The team had to navigate complex issues surrounding hearsay evidence, which required a strong knowledge of the rules of evidence.

Matthew Mulrooney, who helped to coach the team in advocacy skills over the past two months, told Irish Legal News: “It is difficult to reconcile the level of legal knowledge, advocacy skill, and legal application with the age of these incredible individuals.

“My only regret is that some will be tempted by other professions, but to the few who will join us, I look forward with excitement to welcoming them as colleagues in the near future.

“Take note of these those names because we can expect big things and I for one consider it a privilege to have been a part their lives just for a short while.”

He added: “Special mention must be given to Kate Leonard and Lisa Lennon, who both delivered flawless cross-examinations, which would have left experienced counsel nervous of their position.

“Layla McCann, Juno Sheridan and Róisin Ní Fhátharta, and Kate Leonard again, delivered powerful, passionate, well-structured and well-prepared opening/closing statements.

“Cian Dolan and Tara Flynn argued competently and effectively in the pre-trial motion to include/exclude previous actions of a witness.

“Ted Silke had an impressive grasp of issues surrounding evidence exhibits and his objections and defence to same, were well thought out, well-timed and impressive.

“Finally, special mention to the witnesses — Mark Egan, Niamh Glesson, Beth Kelly, Rachel Lyons, Erin O’Connor — and Oliva Maye as the accused Sheriff Klien.”

HHD Solicitors welcomes conveyancing associate Joanne Moore

Writing on LinkedIn, the firm said: “Joanne brings a wealth of experience and expertise of the conveyancing process and her enthusiasm for exceptional client care will be a tremendous asset to our firm and the clients we serve in Belfast and beyond.

“Welcome aboard Joanne!”

Based in Belfast, HHD Solicitors offers comprehensive legal services to individuals and businesses across Northern Ireland.

Mason Hayes & Curran: Planning reform key to social housing delivery

Nearly half (48 per cent) of 250 professionals surveyed by the business law firm said planning reform would have the biggest impact, followed by increased local authority resourcing (30 per cent) and continuation of the financial contribution waiver (22 per cent).

The new Planning and Development Bill, signed into law in October, could be a crucial step forward, Mason Hayes & Curran suggests.

Built environment partner Janet Cafferky said: “Planning delays are stalling crucial housing projects across the country.

“The new planning laws could be a driver of change, streamlining the approval process and helping projects reach the market faster. With more efficient approvals, and a bridging of the viability gap, housing bodies and developers can work together to meet Ireland’s housing needs at a realistic pace.”

Almost two-thirds (64 per cent) of respondents said balancing viability and affordability is the biggest challenge in social housing development.

High construction and financing costs are placing immense pressure on developers to keep projects financially feasible while offering affordable rents.

Karol Fox, financial services partner at Mason Hayes & Curran, said: “Social, affordable and cost rental development continues to face challenges.

“While the forward fund model eliminates financing costs for developers and the forward sale model assists developers secure upfront financing, without further support, viability remains tough. Addressing this will be critical in helping the sector meet Ireland’s urgent housing demands.”

These innovative financing structures have gained popularity in recent years. In forward fund models, housing bodies acquire sites before construction begins and make stage payments during development. Forward sale arrangements involve purchasing completed units from developers, reducing risk for housing providers.

Mr Fox added: “The Irish government has introduced numerous initiatives to address cost rental and affordable housing in recent years with over 50 per cent of new housing units in Ireland now benefiting at some point from government funding.

“However, while these schemes are beneficial, the timing and structure of certain schemes could be adjusted to make them more developer-friendly and increase participation.

“For example, with the Secure Tenancy Affordable Rental (STAR) investment scheme and the Crói Cónaithe programme, making funding available earlier in the build process could reduce the financial burden on developers and enhance project viability.”

The survey also highlighted the importance of continued investment in the Land Development Agency (LDA) and Approved Housing Bodies (AHBs). Close to six in 10 respondents (57 per cent) said this was the most effective means of increasing social housing social housing supply.

Paul Bassett, built environment partner at Mason Hayes & Curran, said: “The LDA and AHBs bring both public funding and industry experience. Their collaborative models reduce exit risks for developers, making large-scale projects more attractive and feasible. Public investment here is key to delivering affordable housing at the scale needed to meet demand.”

He added: “Access to competitive financing rates enables AHBs to undertake larger projects with lower financing costs. This is essential for delivering affordable units to those who need them most.”

French newspapers launch copyright lawsuit against X

The publishers allege that X has failed to comply with a French law which has, since 2019, required online platforms such as X to negotiate with publishers on fair remuneration for use of their content.

Meta and Google are among the major technology companies which have already agreed to make regular payments to French news publishers for displaying their content.

So-called “neighbouring rights” were introduced in the 2019 EU Directive on Copyright in the Digital Single Market, but are not currently enforced in most EU member states.

The copyright infringement lawsuit brought before a tribunal in Paris alleges that X has failed to comply with the law requiring the platform to negotiate, The Times reports.

“The revenue from these rights, with the investment that it would enable its beneficiaries to make, is a boost to the plurality, independence, and quality of the media, which are essential for freedom of expression and the right to information in our democratic society,” the publishers said in a joint statement.

A hearing is scheduled to take place on 15 May 2025.

US judge declares: Thou shalt not require classrooms to display the Ten Commandments

The preliminary injunction follows legal proceedings taken by a multi-faith group of nine Louisiana families with children in public schools, represented by the ACLU, ACLU of Louisiana, Americans United for Separation of Church and State, and the Freedom From Religion Foundation.

International law firm Simpson Thacher & Bartlett LLP is acting for the families as pro bono counsel.

Judge John W. DeGravelles yesterday determined that Louisiana’s HB 71, enacted last June, violates the First Amendment of the US Constitution and long-standing Supreme Court precedent.

In the 1980 case of Stone v. Graham, the Supreme Court overturned a similar state statute, holding that the First Amendment bars public schools from posting such displays.

The judge also found that HB 71 would lead to unconstitutional religious coercion of the children-plaintiffs in the case by imposing religious doctrine on them for nearly every hour of the school day, throughout their entire public-school education.

The law cannot now be enforced pending the final resolution of the litigation.

Heather L. Weaver, senior staff attorney for the ACLU’s programme on freedom of religion and belief, said: “This ruling should serve as a reality check for Louisiana lawmakers who want to use public schools to convert children to their preferred brand of Christianity.

“Public schools are not Sunday schools, and today’s decision ensures that our clients’ classrooms will remain spaces where all students, regardless of their faith, feel welcomed.”

Jon Youngwood, co-chair of Simpson Thacher’s litigation department, said: “We are heartened by the District Court’s well-reasoned and detailed opinion, which rests upon the wisdom of the First Amendment to the Constitution and the protections it affords regarding the separation of church and state and the free exercise of religion.”

Mediation for workplace disputes:  A positive force for change

Mediation has become the intervention of choice for addressing these issues, but not every case fits the same mould. 

Some disputes may go to the Workplace Relations Commission (WRC) Mediation Service, while others are best handled by a trained manager or an independent mediator. So how do you choose the right approach? 

Should mediation be in-person, virtual, or over the phone? Should lawyers get involved? Will there be a binding outcome?

Even within the WRC, mediation options vary from “normal” mediation to workplace mediation to the new “late request” mediation, which can take place when an adjudication date has been set. 

More formal disputes under frameworks such as the Civil Liability and Courts Act, 2004 or the Mediation Act 2017 often involve external mediators and legal representatives, while workplace mediation tends to be more flexible, involving colleagues and joint sessions without legal advisors present.

In an era where managers increasingly employ mediation-style conversations to defuse potential conflicts, the demand for skilled mediators is clear. 

The WRC saw a 19% rise in mediation cases in 2023, and more organisations are training managers in conflict resolution skills, underscoring a booming opportunity in workplace mediation.

The challenge, however, lies in knowing how to adapt mediation to suit each context. To make an impact, aspiring mediators must:

• Understand different legislative frameworks that apply,
• Tailor the mediation process to specific situations, and
• Develop a toolbox of adaptable mediation skills and strategies.

With these tools, mediators can help transform destructive workplace conflict into a positive force for progress and change, making this a compelling and fulfilling career path in an ever-evolving field.

Add mediation to your skillset and become an accredited mediator with Mediator Academy.

Visit our website and download our prospectus for details of our next Dublin accredited mediation training course. 

And finally… don’t cry for me

The bizarre 1974 law made international headlines a decade ago when then-president Cristina Fernández de Kirchner became godmother to a Jewish baby for the first time.

A couple with seven sons or seven daughters is allowed under the law to request that the president becomes the seventh child’s godfather or godmother.

The president is required to accept, to send a representative to the child’s baptism, and to make a small financial contribution to the child’s education.

Though law since 1974, the tradition dates back to the 1900s and was brought to Argentina by Russian immigrants. The practice has been long abandoned in Russia.

It is widely — but wrongly — believed that the law is linked to a superstition that the seventh son or seventh daughter of any family needs a godparent to stop them from being transformed into a werewolf or ‘lobizón’.

“The local myth of the lobizón is not in any way connected to the custom that began over 100 years ago by which every seventh son (or seventh daughter) born in Argentina becomes godchild to the president,” Argentine historian Daniel Balmaceda told The Guardian in 2014.

The 1974 law is one of a huge number put on the chopping block by Argentina’s radical libertarian president Javier Milei, according to Argentina Reports.