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The monthly allowance is for children under 16 who have severe disabilities and require ongoing care 
A father and his severely disabled son have lost their Supreme Court appeal over being refused a domiciliary care allowance for more than two years while the boy was in hospital. 
The five-judge court unanimously rejected arguments made under Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights challenging the Minister of Social Protection’s decision to find the child ineligible for the allowance for the long hospital period. 
The domiciliary care allowance is a monthly payment for children under 16 who have severe disabilities and require ongoing care. The Social Welfare Consolidation Act 2005 provides that the allowance is not payable when a child is resident in an “institution” where care is paid for with public funds. The legislation provides for some limited exceptions to the exclusion. 
The boy qualified for the payment, on account of a number of serious medical conditions, when he resided at home. The child was discharged from hospital in late 2017, and the allowance has been paid since then. 
The dispute centred on the withholding of funding during his lengthy hospital stay, with the father and son arguing the legislation creates an unjustifiable discrimination against them compared to parents caring for severely disable children at home. 
It was claimed that, despite being in hospital, the boy still required between eight and 12 hours of care per day that was provided by his mother and father. His father gave up work to spend time with him in hospital. 
The High Court and Court of Appeal both dismissed the challenge. 
The Supreme Court ruled on Monday that a statutory classification that distinguishes between parents who care for children with severe disabilities at home and those giving care to such a child in hospital was not irrational and it pursues a “legitimate objective”. 
Delivering the court’s judgment, Ms Justice Iseult O’Malley said a challenge to legislation based on the guarantee of equality can only succeed if the exclusion is grounded on a constitutionally illegitimate consideration that results in an irrational distinction where some people are treated as inferior for no justifiable reason. 
“The legislature is entitled to make policy choices and therefore must be entitled to distinguish between classes of people,” she said. 
The judge said the exclusion here was not based on a suspect ground and the purposes of the allowance are legitimate policy objectives. These objectives include encouraging parents in their decision to care for their child at home and providing financial help to those who would not otherwise be able to give extra care and attention required by their child, she added. 
The judge noted that the level of care provided to the boy by his parents was not only extremely onerous but appeared, to an extent, to be expected by the hospital. 
However, exclusion of children who are being maintained for a long period in an institution, such as a hospital, at the State’s expense is “not prima facie irrational”, she said. 
Ms Justice O’Malley also rejected the father and son’s contention that the burden of proof should shift to the State to demonstrate the constitutionality of the legislation. This approach was not supported by legal authority and would be “incompatible with the presumption of constitutionality”, she said. 
Chief Justice Donal O’Donnell, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne and Ms Justice Marie Baker concurred with the judgment. 
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