A disabled Ukranian woman and her husband have lost an important Supreme Court appeal over a law excluding temporary protection applicants in designated accommodation centres from social welfare benefits.
In dismissing the appeal on Tuesday, the seven-judge Supreme Court rejected arguments the 2024 law permitted unlawful arbitrary treatment of the couple in breach of the equality guarantee in Article 40.1 of the Constitution.
Under the law, the woman lost her disability allowance and the man his carer’s allowance because they remained in their designated hotel accommodation.
The couple, who cannot be identified, have lived on a full-board basis in a hotel in Dublin since they arrived in the State in 2022 after fleeing the Russian war on Ukraine.
The woman, a wheelchair user, had from 2022 received a means-tested disability allowance of €208 per week. Her husband, who has medical needs and is unlikely to return to work, received a means-tested weekly carer’s allowance of €224.
Amending legislation in 2024, aimed at freeing up space in designated accommodation centres (DAC), stated displaced people granted temporary protection here “shall be disqualified” from social welfare assistance, other than supplementary welfare allowance, while in a DAC.
When the couple’s hotel became a DAC in September 2024, they lost their disability and care allowances. If they moved out, they would be entitled to the allowances.
Their senior counsel, Feichín McDonagh, argued the 2024 amendments meant the couple were being “pushed out” in a situation where it is “very difficult” for a woman in a wheelchair to get alternative accommodation in a housing crisis.
After the High Court rejected their challenge, they secured an appeal directly to the Supreme Court on grounds it raised a “serious issue” with implications for many – whether the distinction drawn between temporary protection recipients and international protection candidates, on which the legislative changes were based, is constitutionally valid.
Giving the Supreme Court’s unanimous judgment, Judge Iseult O’Malley said the appeal involved a “pure” equality claim in that the couple argued they were unlawfully excluded from a benefit extended to people in a similar position.
Such a claim is governed by legal principles including the court will show deference to the Oireachtas in relation to legislation dealing with matters of social and fiscal policy, she said.
The claim the couple were treated differently solely on the basis of their place of residence failed to recognise their legal status is different in nature and arises from a different source, and the distinctions drawn by the legislature relate to those differences, she said.
A constitutional claim for financial equality would require them to identify other social welfare recipients similar to them who were treated favourably, which they had failed to do, she said.
They had disregarded the financial value of the full board accommodation provided to them and had “not realistically estimated” the living expenses of persons not receiving such a service.
The issue does not arise from where they reside but rather the different forms of service available to people in different forms of accommodation, said O’Malley.
Article 40.1 is not engaged where a claimant is offered a choice between two forms of assistance and fails to establish disproportionately unfavourable treatment of persons claiming either form, the judge held.
The Oireachtas policy to reduce the number of people in State-provided accommodation facilities is not illegitimate once proper alternative assistance is provided, and the State’s obligations under the EU temporary protection directive are complied with, she held.
The Oireachtas may also alter initial reception policy to ensure particular forms of assistance, designed to be temporary, do not become permanent.
Noting the couple are “particularly vulnerable” because of their health needs, the judge said they remain entitled to be given access to suitable housing, or the means to get housing and other assistance for persons with special needs, if they lack sufficient resources.