Commission Appears in Significant Supreme Court Case on Disability Rights and Constitutional Equality
Is it discriminatory that the parents of a child with a severe disability, who needs continual care, be refused access to the Domiciliary Care Allowance (‘DCA’) because of the time the child has spent in hospital?
The Supreme Court has today been hearing arguments in a significant disability rights case where the Irish Human Rights and Equality Commission (the Commission) has exercised our amicus curiae (friend of the court) role.
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, 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.”
The Commission concludes: “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.”
Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“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.”
ENDS/
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Editor’s Note
The legal submissions made by the Irish Human Rights and Equality Commission in this Supreme Court case is available at the following link:
Supreme Court Submissions – Donnelly v. Minister for Social Protection & Ireland
The amicus curiae function of the Irish Human Rights and Equality Commission.
The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.