Necessary Assistance, Not Equal Assistance: Differential Social Welfare for Beneficiaries of Temporary Protection in Designated Accommodation

1. Introduction

This High Court judgment, A.A. and B.B. v The Minister for Social Protection, Ireland and the Attorney General ([2025] IEHC 732, Owens J, 10 December 2025), addresses two interlocking questions of considerable practical and constitutional importance:

• How far may the Oireachtas differentiate social welfare entitlements for non‑citizens with temporary protection under EU law, especially where they receive full-board State-funded accommodation?
• What does Article 13(2) of Council Directive 2001/55/EC (the Temporary Protection Directive) actually require by way of “necessary assistance in terms of social welfare and means of subsistence”?

The applicants, Ukrainian nationals granted temporary protection in Ireland, had previously received:

• Disability allowance (A.A.), and
• Carer’s allowance (B.B. as full-time carer for A.A.),

while also being accommodated in a State-funded, full-board hotel. Changes introduced by the Social Welfare and Civil Law (Miscellaneous Provisions) Act 2024 (“the 2024 Act”) disentitled persons with temporary protection residing in designated accommodation centres from most social assistance payments, including disability and carer’s allowance, leaving only narrow supplementary welfare routes and an extra-statutory cash scheme.

The central issues were:

1. Whether the Directive prohibits a Member State from providing a distinct, less generous social assistance regime for persons with temporary protection who are receiving full-board, State-funded accommodation.
2. Whether Article 40.1 of the Constitution permits such differential treatment.
3. Whether the Directive requires the State to continue paying disability and carer’s allowance specifically, on the basis that these represent the “necessary assistance” mandated by Article 13(2).

Owens J dismissed the application, upholding the 2024 reforms as compatible with both the Constitution and the Directive, and rejecting a collateral challenge to a refusal of an exceptional needs payment. The judgment articulates a clear principle: under both domestic constitutional law and the Temporary Protection Directive, the State must provide adequate or “necessary” social support, but is not required to guarantee equal or identical social welfare entitlements to those enjoyed by citizens or other classes of lawful residents.

2. Factual and Legal Background

2.1 The Applicants’ Circumstances

A.A. and B.B. are a married Ukrainian couple in their early fifties who fled the war in Ukraine in 2022. They were granted temporary protection in Ireland under the Temporary Protection Directive, as implemented by s. 60 of the International Protection Act 2015 (“the 2015 Act”).

They have since lived in a Dublin hotel (“the Hotel”), provided by the State on a full-board, serviced basis: accommodation, meals and associated utilities are covered. They are required to make a weekly contribution towards meals, but that €10 per day contribution is itself paid by the State directly to the service provider.

Due to serious health issues:

• A.A. is wheelchair-bound and qualified for disability allowance; and
• B.B. suffers from diabetes, high blood pressure and back problems, and qualified for carer’s allowance in respect of the full-time care he provides to A.A.

From 2022 until late 2024 they received full disability and carer’s allowance while also enjoying free serviced accommodation and meals, a combination that left them significantly better off than many Irish citizen recipients of social assistance, who must pay rent, food and utilities from their payments.

2.2 The 2024 Legislative Changes

Before 2024, s. 60(10) of the 2015 Act (as originally enacted) stated that a displaced person entitled to temporary protection was:

“to receive, upon and subject to the same conditions applicable to Irish citizens, the same medical care and the same social welfare benefits as those to which Irish citizens are entitled”.

Thus, beneficiaries of temporary protection had, in principle, parity of social welfare entitlement with Irish citizens, including both contributory benefits and means-tested assistance.

The 2024 Act significantly altered that position for those in full-board State accommodation:

• Section 10 inserted a new s. 247D into the Social Welfare Consolidation Act 2005 (“the 2005 Act”) providing that a person with temporary protection under s. 60(6) of the 2015 Act is disqualified from receiving social assistance listed in s. 139(1) (jobseeker’s allowance, disability allowance, carer’s allowance, non-contributory pensions, etc.), except:
  • supplementary welfare allowance under s. 201 (exceptional needs payments), and
  • supplementary welfare allowance under s. 202 (urgent needs payments),
  for any week during which he or she is resident in a designated accommodation centre.
• Section 11 amended s. 60 of the 2015 Act by:
  • defining “designated accommodation centre” (s. 60(1)), and
  • amending s. 60(10)(b) so that parity of social welfare benefits with citizens applies “other than while [the person] is resident in a designated accommodation centre”.

From September 2024, the Hotel where the applicants live was formally designated as such a centre. All similar Ukrainian emergency accommodation hotels and guest-houses were likewise designated. The practical consequence for the applicants was stark:

• they lost entitlement to disability and carer’s allowances;
• they lost their associated free travel cards; and
• they became entitled instead to:
  • a weekly extra-statutory cash payment of €38.80 each; and
  • a €70 per week State payment directly to the hotel (covering their nominal €10/day meal contribution);
  • plus the possibility of exceptional or urgent supplementary welfare allowance under ss. 201–202 of the 2005 Act.

If the applicants leave designated accommodation and obtain alternative housing, their entitlement to disability and carer’s allowance, and the free travel scheme, will revive, and they may also qualify for rent supplement.

2.3 The Policy Context

The State, facing both:

• a very large influx of Ukrainians with temporary protection (over 110,000 by January 2025, with 74,500 housed by the State in December 2023, 57,700 of them in fully serviced accommodation), and
• a wider housing crisis affecting citizens and non‑citizens alike,

asserted that the level and structure of support to Ukrainian beneficiaries of temporary protection had become unsustainable and risked the State being unable to provide any accommodation to new arrivals. The 2024 changes were said to:

• reduce a perceived financial “cushion” enjoyed by persons in full-board hotels (relative to social welfare recipients who must pay for food and utilities themselves);
• promote “greater independence and integration” by incentivising moves out of emergency hotel accommodation; and
• align Ireland’s supports more closely with those of other Member States, thereby avoiding a disproportionate share of the EU’s burden and discouraging “welfare tourism”.

The evidence before the Court showed that after these measures, the number of people with temporary protection in State-provided hotel accommodation fell markedly, from some 60,000 in November 2023 to just over 25,000 by March 2025.

2.4 The Applicants’ Claims

The applicants advanced three main lines of attack:

1. Constitutional equality (Article 40.1): they claimed the 2024 Act unlawfully discriminated against them by:
   • treating them differently from:
     • Irish citizens and others not in designated accommodation who continue to receive disability/carer’s allowance; and
     • certain other groups (e.g. some beneficiaries of international protection, or people with disabilities in hospitals or similar institutions),
   • without proper justification, and
   • for an allegedly improper purpose (to “pressurise” them out of their accommodation).
2. EU law – Temporary Protection Directive: they argued that Article 13(2) of Directive 2001/55/EC requires the State to provide the level of social welfare they had been receiving (disability and carer’s allowances), and that removing these entitlements was an impermissible alteration of a transposition measure (s.60 of the 2015 Act).
3. Supplementary welfare appeal: B.B. challenged a refusal of an “additional/exceptional needs” payment (allegedly €70, though his form did not specify an amount) under ss. 201–202 of the 2005 Act, on the basis that the decision was perverse, irrational and ignored their hardship.

In written submissions they also attempted to invoke Articles 20 and 26 of the EU Charter of Fundamental Rights, but these had not been included among the grounds on which leave to seek judicial review was granted.

3. Summary of the Judgment

3.1 The Core Answers

Owens J expressly answered the questions set out at the start of his judgment as follows:

1. Does the Directive prohibit the State from establishing a distinct social welfare regime for temporary protection beneficiaries in full-board accommodation? – No.
2. Does Article 40.1 of the Constitution permit the Oireachtas to enact laws giving different social welfare entitlements to persons with temporary protection in State-funded full-board accommodation? – Yes.
3. Does Article 13(2) of the Directive oblige the State to provide disability allowance and carer’s allowance specifically? – No.

Accordingly, the application for judicial review was dismissed in full, including the challenge to the supplementary welfare appeal decision.

3.2 Key Findings

• The differentiation in social welfare entitlements between:
  • persons with temporary protection in designated full-board accommodation; and
  • citizens/other residents who must fund their own food and utilities
  does not breach Article 40.1 of the Constitution. The legislation pursues legitimate policy aims, is rational, and is not disproportionate on the evidence in this case.
• The Court accepts that under Article 40.1:
  • the State may treat different categories of residents differently in social welfare legislation, including:
    • citizens vs non‑citizens,
    • permanent vs temporary residents,
    • those receiving certain in-kind State supports vs those who do not;
  • provided the distinctions are not arbitrary, capricious or irrational and are proportionate.
• Article 13(2) of the Directive requires Member States to provide beneficiaries of temporary protection with “necessary assistance in terms of social welfare and means of subsistence”, but:
  • this does not mean they must be given the same types or levels of social welfare payments as citizens or other lawful residents;
  • Member States have a margin of appreciation in deciding the “what and how much” of this assistance, subject to an objective adequacy standard;
  • the State is entitled to take into account in‑kind benefits such as free full-board hotel accommodation when assessing whether the level of cash support provided meets the “necessary” threshold.
• The applicants failed to prove that:
  • their current overall package of support (accommodation, food, extra-statutory cash payments and potential supplementary welfare) is inadequate to meet their needs; or
  • they are now significantly worse off in net terms, compared with:
    • social welfare recipients not in serviced accommodation, or
    • the position they would be in if they left the Hotel and accessed mainstream supports (including disability and carer’s allowances, rent supplement etc.).
• The extra-statutory payments of €38.80 per week (plus the €70 per week meal contribution) are legally relevant in assessing whether:
  • there is a breach of Article 40.1, and
  • the State complies with its obligations under Article 13(2) of the Directive.
  Beneficiaries may, if necessary, enforce these entitlements by public law remedies; this is not a purely ex gratia scheme in the sense criticised in ESB v Gormley.
• The applicants’ equality comparators were inappropriate:
  • beneficiaries of international protection in “direct provision” accommodation are not necessarily in the same position; and
  • long-term hospital residents with disabilities are fundamentally different, given the nature and purpose of their institutionalisation and the evolution of the relevant disability policy.
• The Court could not, as a matter of judicial review procedure, entertain:
  • new Charter of Fundamental Rights claims (Articles 20, 26) not pleaded at the leave stage; or
  • a broader EU law challenge to the legal form of the extra-statutory scheme, which had not been advanced as a ground of invalidity.
• The refusal of an exceptional/urgent needs payment to B.B. was lawful:
  • decision-makers were entitled to regard the HSE and the accommodation provider as having primary responsibility for many of the claimed needs;
  • no irrationality or perversity was shown, especially given the availability of:
    • internal review and appeal mechanisms under ss. 323–324 of the 2005 Act; and
    • the possibility of making fresh applications with better particulars.
• Judicial review of supplementary welfare allowance decisions under ss. 201–202 will “seldom” be appropriate, given:
  • their discretionary nature, and
  • extensive internal mechanisms for correction of errors and for reconsidering new information.

4. Analysis: Legal Reasoning and Precedents

4.1 Constitutional Equality: Article 40.1 and the Donnelly Test

Article 40.1 of the Constitution provides:

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

Owens J anchors his analysis in the Supreme Court’s modern restatement of the equality guarantee in Donnelly v Minister for Social Protection ([2022] IESC 31; [2023] 2 I.R. 415). O’Malley J’s synthesis of the case law, quoted at length, sets out six key propositions:

1. Article 40.1 guards against discrimination based on arbitrary, capricious or irrational considerations.
2. The burden of proof lies on the person challenging constitutionality.
3. The Court must give effect to the presumption of constitutionality.
4. There is deference to the Oireachtas in areas of social, fiscal and moral policy (separation of powers).
5. Where a measure impacts characteristics intrinsic to human identity, or particularly vulnerable groups, closer scrutiny may be called for; otherwise, the Court’s scrutiny is less intense.
6. Sometimes the legislative objective and rationality are apparent on the face of the statute; in other cases, evidence is needed.

Owens J further endorses O’Malley J’s observation (Donnelly, para. 197) that the question is whether the legislation draws a distinction based on intrinsic aspects of the human person (e.g. gender, religious conviction, race) in the sense discussed in Murphy v Ireland [2014] IESC 19, [2014] 1 I.R. 198.

Crucially, the Court emphasises that Article 40.1:

• does not require a uniform social welfare scheme for all residents, whether citizens or not;
• does not mandate uniform criteria for social welfare eligibility across all groups; and
• does allow the Oireachtas to distinguish:
  • between citizens and non‑citizens,
  • between persons present as of right and those here by permission,
  • between temporary and permanent residents, and
  • between those receiving substantial in-kind State support and those who do not.

Such distinctions are legitimate so long as they are not based on prohibited grounds (e.g. race, sex) and are rationally connected to a legitimate policy objective, with a reasonable proportionality between means and ends.

4.2 Legitimate Objectives and Proportionality

The Court accepts that the 2024 Act pursues several legitimate legislative aims:

• Encouraging independence and integration: reducing reliance on emergency hotel accommodation initially intended as a short‑term response to a crisis, and promoting movement into mainstream housing.
• Eliminating “double support”:
  • Before 2024, some temporary protection beneficiaries received both:
    • full social welfare assistance (e.g. disability and carer’s allowance) and
    • full-board hotel accommodation and meals paid by the State.
  • This placed them in a more favourable financial position than:
    • Irish citizens and others who must finance their own rent, food and utilities from their social assistance; and
    • beneficiaries of temporary protection who do not rely on serviced accommodation.
• Ensuring sustainability and burden‑sharing: avoiding a situation where generous supports in Ireland attract a disproportionate number of persons with temporary protection (“welfare tourism”) and strain the accommodation system to breaking point.

Owens J explicitly recognises that:

• Incentivising exit from State-funded hotel accommodation and discouraging welfare tourism are legitimate legislative objectives in social welfare law (paras. 103–104, 107–110, 122).
• The Oireachtas was entitled to consider that continuing to combine full social welfare entitlements with full-board hotel accommodation was unsustainable by 2024 (para. 108).

In assessing proportionality, the Court invokes the European Court of Human Rights decision in Stec v United Kingdom (2006) 43 EHRR 47, noting that a legislative distinction is legitimate if there is “no objective and reasonable … relationship of proportionality between the means employed and the aim sought to be realised” (para. 106).

The Court’s proportionality analysis has two main strands:

1. Are the applicants appropriate comparators?
   Owens J finds that the examples relied upon by the applicants (citizens on disability allowance; international protection beneficiaries in direct provision; disabled long-term hospital residents) are not apt comparators for persons with temporary protection in full-board hotel accommodation. The context, policy justification and overall support packages are materially different.
2. Are the applicants in fact worse off overall?
   The applicants did not produce evidence showing:
   • that if they moved to independent accommodation and regained disability and carer’s allowances, they would be substantially better off in net terms; or
   • that their current package (cash payments + free accommodation and meals + potential supplementary welfare) left them significantly disadvantaged relative to other comparable social welfare recipients.
   In the absence of such evidence, the claim of discriminatory effect fails.

The Court also rejects the suggestion that the 2024 Act was designed to force the applicants out of their accommodation. Rather, it perceives a rational policy choice to encourage movement towards more independent living, while still offering a safety net:

• If they stay in the Hotel, they receive reduced cash but substantial in-kind support;
• If they leave, they regain full statutory benefits and may access rent supplement and other supports.

4.3 Appropriate Comparators

The equality analysis depends heavily on comparators—the groups against which the applicants’ treatment is measured. Owens J addresses three proposed comparators:

(a) Other Social Welfare Recipients (Citizens and Non‑Citizens)

Citizens and other residents who receive disability or carer’s allowance but must fund their own housing, food, utilities and incidental living costs are in a very different position from persons like A.A. and B.B., whose accommodation and meals are fully covered by the State. The Court finds no evidence that, once the value of in-kind support is factored in, the applicants are worse off overall.

(b) Beneficiaries of International Protection in Serviced Accommodation

The applicants asserted that some persons with refugee or subsidiary protection declarations also live in State-funded hotel accommodation while receiving disability or carer’s allowance. The Court notes:

• no evidential foundation was provided to demonstrate that such persons receive a package identical to that of the applicants; and
• even if they did, there is nothing to prevent the Oireachtas from enacting parallel reforms to address any analogous “double support” problem in that cohort, provided such changes are not disproportionately unfavourable (paras. 118–121).

(c) Disabled Long-Term Hospital Residents

The applicants argued that A.A. should be treated similarly to persons on disability allowance who live in hospitals or similar institutions where the Health Service Executive (“HSE”) funds their maintenance costs.

Owens J traces the evolution of the law on disability allowance and hospital residents, noting:

• original exclusion of long-term hospital residents from disability allowance (with limited exceptions),
• gradual relaxation beginning in 1999, and
• final repeal of the exclusion in 2007.

He emphasises the different rationale at play:

• long-term hospital residents are there due to serious health needs and a lack of means, and removal of their entitlement to disability allowance would be deeply inequitable;
• by contrast, the applicants are not medically required to live in hospital or an institution; they are temporary residents benefiting from a crisis-response accommodation scheme. If A.A. ever needed to move into hospital, she would qualify for disability allowance like any other person.

Accordingly, this comparator is “completely different” and does not show discriminatory treatment (paras. 123–126).

4.4 EU Law: The Temporary Protection Directive and “Necessary Assistance”

(a) Purpose and Structure of the Directive

The Directive (2001/55/EC) was adopted in response to the mass displacement following the Yugoslav wars. Its recitals and operative provisions reveal a clear policy design:

• It is an exceptional, temporary instrument to deal with a mass influx of displaced persons who cannot return home (recitals 2, 13, 14).
• It sets minimum standards of protection and aims to ensure a balanced distribution of effort between Member States (recitals 2, 8).
• Standards and measures are “linked and interdependent” to avoid “secondary movements” and are to be enacted in a “single legal instrument” (recital 9).
• Member States may adopt more favourable provisions for persons enjoying temporary protection (recital 12), but are not required to maintain such generosity indefinitely.

(b) Articles 12 and 13

Articles 12 and 13 govern, respectively:

• Access to employment and associated social security systems (Art. 12); and
• Accommodation and subsistence support (Art. 13).

Article 13(1) requires Member States to ensure that persons enjoying temporary protection have access to suitable accommodation or the means to obtain housing. Article 13(2) then provides:

“The Member States shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care.”

Owens J stresses several features of this provision:

• The phrase “social welfare and means of subsistence” should be read as a single concept: states must ensure that, by a combination of money, goods and/or services, the person’s overall needs are met (para. 138).
• The Directive does not require Member States to grant:
  • permanent housing, or
  • the same social welfare assistance as that available to citizens or to other categories of lawful residents.
• Nor does it expressly guarantee access to all components of the host State’s social welfare system on an equal basis with nationals. Had that been intended, Article 13 would have said so explicitly (paras. 136–137).
• Article 12’s reference to “social security systems relating to employed or self‑employed activities” concerns contributory benefits (e.g. unemployment benefit, occupational injuries benefit) and does not import a general equality of social assistance treatment.

(c) Margin of Appreciation and Objective Adequacy

The Court articulates a kind of “margin of appreciation” in how Member States comply with Article 13(2) (paras. 139–142):

• States may decide what form the assistance takes (cash, in-kind, or a mix);
• States may decide how much support is necessary, taking into account:
  • other benefits (such as accommodation and food) provided under Article 13(1);
  • whether the person has income from employment (Art. 13(3)); and
  • any special needs under Article 13(4) (e.g. torture survivors, unaccompanied minors).

However, this discretion is not unlimited: whether the assistance is “necessary” can be objectively determined, and states must remain above the Directive’s minimum adequacy threshold.

In this case, the applicants confined their EU law argument to the narrow contention that “necessary assistance” meant they had a right to continue receiving disability and carer’s allowances because they had previously been found eligible for them. Owens J firmly rejects this premise (paras. 133–134):

• The Directive does not “freeze” whatever level or type of support a Member State voluntarily chose initially;
• Member States are entitled to revise their domestic schemes, reducing generosity back towards the minimum standards, so long as they remain above the required adequacy floor.

No evidence was adduced that the applicants’ current package fell below this adequacy threshold. There was:

• no detailed quantification of their living costs versus the combined value of free accommodation, food, extra-statutory payments and potential supplementation under ss. 201–202; and
• no attempt to show that their current overall standard of support was insufficient for a dignified existence or incompatible with the Directive’s objectives.

(d) Interaction Between Article 13(1) and 13(2)

The applicants argued that:

• obligations under Article 13(1) (accommodation/means to obtain housing) are separate from those under Article 13(2) (necessary assistance in terms of social welfare and means of subsistence), and
• benefits attached to accommodation (such as free meals) should not be considered in measuring the adequacy of “social welfare” under Art. 13(2).

Owens J rejects this as artificial (paras. 141–142). Accommodation and subsistence are interrelated components of social protection. If the State covers meals and utilities as part of housing provision, then:

• the level of cash support that is “necessary” to meet basic needs may be lower than for a person who must pay for those items themselves; and
• it is legitimate to take those in-kind benefits into account in setting the level of cash assistance.

(e) Extra-Statutory Schemes and EU Law

The applicants did not challenge the legality of the extra-statutory €38.80 per week payments as such, nor did they argue that Article 13(2) requires all necessary assistance to be underpinned by statute rather than administrative scheme. Owens J therefore:

• treats those payments as part of the relevant support package for equality and Directive-compliance purposes; and
• notes that recipients may enforce those payments by public law remedies, which reinforces their legal significance (para. 129).

He explicitly does not decide whether, in EU law terms, reliance on an extra-statutory scheme (as opposed to a statutory one) is itself problematic, because that argument was not pleaded at the leave stage (paras. 115, 130–132). That question remains open for a future, properly framed challenge.

4.5 Procedural Limits: Scope of Judicial Review and New EU Charter Claims

The judgment underscores the procedural discipline of Irish judicial review:

• Claims must be formulated in the statement grounding the application for leave;
• The High Court cannot entertain new legal grounds subsequently raised in written or oral submissions, unless leave is formally amended.

In this case:

• The only EU law ground advanced at leave stage was that Article 13(2) required payment of disability and carer’s allowances.
• Later attempts to rely on:
  • Article 20 of the Charter (equality before the law); and
  • Article 26 of the Charter (integration of persons with disabilities),
  fell outside the permitted scope and could not be considered (paras. 24–26, 131–132).

Owens J also notes that had a broader EU equality argument been properly pleaded (e.g. requiring some equivalence of support between different categories of temporary protection beneficiaries), a different analytical approach might have been necessary (para. 131). That possibility is left open for another case.

4.6 Supplementary Welfare Allowance Decisions and Judicial Review

Finally, the Court addresses B.B.’s challenge to the refusal of a supplementary welfare allowance payment under ss. 201–202 of the 2005 Act (exceptional or urgent needs).

Two “designated persons” refused his application, essentially on the basis that:

• “medical needs” are primarily the responsibility of the HSE (with possible recourse to the GMS Hardship scheme);
• dietary and meal issues in a designated accommodation centre should be addressed to the accommodation management or the relevant State unit (UCTAT); and
• supplementary welfare is not an “alternative or additional source of support” where another State agency has primary responsibility.

A review/appeal decision upheld that view, emphasising that exceptional needs payments are reserved for truly exceptional circumstances and that primary recourse lay with the HSE and accommodation provider.

Owens J dismisses the judicial review challenge for several reasons:

• The grounds pleaded were vague and unsupported by facts or legal error.
• No irrationality or perversity was shown:
  • the decision-makers had regard to relevant considerations (primary responsibility of other agencies);
  • they did not ignore the applicants’ changed financial circumstances; and
  • they were entitled to find that the needs identified were not “exceptional” given available alternative mechanisms.
• Any confusion about the reasons or about particular items (e.g. phone credit, clothing) could and should have been clarified with the decision-makers or by submitting more detailed information.

Most significantly, the Court stresses (paras. 38, 161–162) that:

• The 2005 Act provides generous review and revision powers (s. 324), allowing decisions to be revisited in light of new evidence or correction of legal/factual errors.
• Applicants are free to make fresh applications for supplementary welfare as often as circumstances warrant.
• Given this, judicial review will “seldom” be appropriate for such decisions; most issues can and should be resolved within the statutory scheme itself.

5. Key Legal Concepts Explained

5.1 Temporary Protection vs International Protection

• Temporary protection (Directive 2001/55/EC) is an emergency, time‑limited status activated by an EU Council decision in the event of a mass influx (e.g. the Ukrainian crisis). It confers:
  • a right to reside for the duration of the scheme;
  • access to the labour market; and
  • a package of minimum reception conditions (housing, subsistence, medical care).
• International protection (asylum/refugee status or subsidiary protection) is granted upon individual determination of a person’s need for protection. It is typically more durable and more closely aligned with the rights of citizens in social welfare terms.

5.2 Designated Accommodation Centre

A “designated accommodation centre” is a premises formally designated under s. 60(14A)(a) of the 2015 Act, as amended by the 2024 Act, used to accommodate beneficiaries of temporary protection (in this context, full-board hotel or guest-house facilities). Residence in such a centre now triggers:

• disqualification from most means-tested social assistance under the 2005 Act, and
• eligibility only for:
  • extra-statutory weekly payments, and
  • supplementary welfare allowance in exceptional or urgent cases.

5.3 Supplementary Welfare Allowance (SWA)

SWA is a basic safety net for those whose means are insufficient to meet their needs (s. 189 of the 2005 Act). It serves two main functions:

• Basic weekly assistance (where a person has no other primary social welfare payment); and
• Additional payments:
  • Exceptional needs payments (s. 201): one-off payments to meet exceptional needs (e.g. funeral costs, essential household items) where considered reasonable by a designated officer.
  • Urgent needs payments (s. 202): payments in urgent cases where the usual eligibility rules may be relaxed in the interest of urgency and humanitarian concern.

These supplementary payments are discretionary and designed to operate flexibly; they are not intended to replace entitlements under other State schemes where another agency has primary responsibility.

5.4 Extra-Statutory Schemes

An extra-statutory scheme is an administrative arrangement under which a Minister or Department provides payments or benefits not directly mandated by statute. Two key points emerge from this judgment:

• Not all extra‑statutory schemes are ex gratia in the strict sense; they may still create legitimate expectations enforceable by public law remedies (distinguishing ESB v Gormley).
• For the purposes of:
  • Article 40.1 equality analysis, and
  • assessing compliance with Article 13(2) of the Directive,
  such schemes must be taken into account in evaluating the actual level of State support provided.

5.5 Habitual Residence and Permission to Reside

The 2005 Act makes many social welfare entitlements conditional on being habitually resident in the State. Section 246(6) sets out categories of persons deemed to have a right to reside, including:

• Irish citizens,
• EU citizens with treaty rights,
• various categories of non‑citizens with specific permissions (e.g. refugee or subsidiary protection, leave to remain, temporary protection).

Those without such a right to reside generally fail the habitual residence test and are ineligible for many social welfare payments. The Supreme Court upheld this structure in X v Minister for Social Protection ([2019] IESC 82; [2021] 3 I.R. 528).

Beneficiaries of temporary protection under s. 60 of the 2015 Act have a permission to reside, but the 2024 Act introduces a specific disqualification from certain social assistance payments while they live in designated accommodation centres.

5.6 Comparators in Equality Analysis

An equality comparator is another person or group with whom the claimant compares their treatment. For an equality challenge to succeed, the comparator group must be:

• similarly situated in relevant respects (e.g. needs, legal status, context), and
• treated more favourably without objective justification.

In this case, the Court holds that persons in full-board hotel accommodation funded by the State are not similarly situated to:

• social welfare recipients who must pay for their own food and utilities, or
• long-term hospital residents with disabilities.

5.7 Margin of Appreciation

Although more commonly associated with European human rights law, the concept of a margin of appreciation is transposed here into an EU law context: Member States have a reasonable discretion in how they implement and calibrate minimum standards in a Directive, provided:

• they achieve the required objectives (here, “necessary assistance”), and
• their measures are not manifestly inadequate or discriminatory.

6. Impact and Significance

6.1 Constitutional Law: Scope of Article 40.1 in Social Welfare

This judgment consolidates and extends the approach in Donnelly by confirming that:

• The Oireachtas enjoys wide latitude to differentiate social welfare entitlements between:
  • citizens and non‑citizens,
  • permanent and temporary residents, and
  • those benefiting from substantial State in‑kind support (e.g. full-board accommodation) and those who do not,
  so long as such distinctions are rational and proportionate.
• Explicit policy goals such as:
  • avoiding unsustainable expenditure,
  • discouraging welfare tourism, and
  • incentivising integration and independence,
  are recognised as legitimate objectives.
• The mere fact that one group receives less generous cash payments does not prove inequality if that group also receives greater in-kind benefits and if no clear overall disadvantage is demonstrated.

In future constitutional challenges to social welfare reform—particularly where different regimes apply to different immigration or residence statuses—this judgment will be a key authority affirming judicial deference to legislative choices in socio-economic policy, subject to a rationality and proportionality check.

6.2 EU Law: Interpretation of Article 13(2) of the Temporary Protection Directive

For EU law, the judgment is significant in at least four respects:

1. “Necessary assistance” is not equal treatment: Article 13(2) requires a minimum floor of adequate support, not parity with citizens’ welfare entitlements. States can standardise or reduce their support to temporary protection beneficiaries, as long as the support remains adequate.
2. Integration of in-kind benefits in the adequacy assessment: Accommodation and meals provided under Article 13(1) may and should be considered when assessing the sufficiency of “social welfare and means of subsistence”. The Directive allows a holistic, package-based view of support.
3. Flexibility in implementation: Member States retain a margin of appreciation over the form (cash vs in-kind) and level of support, subject to an objective adequacy standard. This reinforces the Directive’s character as a minimum-standards, burden-sharing instrument.
4. Non-freezing of more favourable measures: While Member States may initially offer support more favourable than the Directive’s minimum (as Ireland did by granting full parity under s. 60(10)), the Directive does not prevent them from later rolling back to a less generous but still adequate level.

That said, some EU law questions remain open, notably:

• whether reliance on extra-statutory schemes (rather than legislative provisions) fully satisfies Member States’ implementation duties under Article 32 of the Directive; and
• whether, if properly pleaded, EU equality principles or the EU Charter might demand more consistency of treatment among different subgroups of persons enjoying temporary protection.

6.3 Practical Impact for Beneficiaries of Temporary Protection

Practically, the judgment confirms that:

• Beneficiaries of temporary protection in designated accommodation centres cannot insist on receiving the same suite of social welfare payments as citizens and other residents not in such centres.
• The State is legally entitled to design a different support model for those who remain in full-board accommodation, even if that creates a financial incentive to move out, provided the overall support remains adequate.
• Those who wish to regain full statutory benefits may need to transition into mainstream housing (with possible assistance such as rent supplement and supplementary welfare payments to support that move).

For NGOs and practitioners, the judgment underscores the importance of:

• carefully evidencing the economic impact of support packages (cash plus in-kind) when challenging welfare changes under equality or EU law; and
• framing EU law arguments comprehensively at the leave stage of judicial review, including Charter and structural transposition issues where appropriate.

6.4 Administrative Law: Limits of Judicial Review in Welfare Decisions

The Court’s comments on supplementary welfare decisions send a clear signal:

• First resort should be to internal review and appeal mechanisms under the 2005 Act.
• Judicial review will only be appropriate where:
  • there is a clear procedural unfairness, or
  • a decision so irrational or perverse that no reasonable decision-maker could reach it.
• Applicants should:
  • particularise the precise items and costs for which they seek supplementary welfare, and
  • explain why those needs are not met by other State schemes (e.g. HSE, housing supports, medical card, hardship schemes).

7. Conclusion

A.A. and B.B. v Minister for Social Protection is a significant decision at the intersection of constitutional equality, EU temporary protection law and social welfare policy.

On the constitutional plane, it confirms a broad legislative discretion to differentiate social welfare entitlements among categories of residents, including temporary protection beneficiaries in State-funded full-board accommodation, so long as the distinctions are rational, proportionate and not grounded in suspect classifications. Article 40.1 does not impose a duty of uniformity; it prohibits only arbitrary or invidious discrimination.

On the EU law plane, the judgment provides a clear reading of Article 13(2) of the Temporary Protection Directive: Member States must secure “necessary assistance in terms of social welfare and means of subsistence”, but are not required to grant the same benefits as citizens or other categories of residents, nor to ossify prior, more generous domestic measures. In-kind benefits such as State-funded accommodation and meals legitimately affect how much cash support is “necessary”.

The applicants’ challenge failed, not because their circumstances were unimportant, but because:

• the legislative distinctions were grounded in legitimate and pressing policy goals;
• they did not prove that their overall level of support had become inadequate or significantly worse than that of appropriate comparators; and
• their legal arguments under EU law and the Charter were procedurally and substantively too narrow.

For future cases, the judgment sets a precedent that:

• “Necessary assistance” under Article 13(2) is about adequacy, not equality;
• the Oireachtas may legitimately calibrate supports to encourage integration and avoid unsustainable burdens; and
• challenges to supplementary welfare decisions should usually be resolved within the statutory review and appeal framework, not via judicial review.

In an era of heightened migration pressures and constrained public resources, this decision delineates the legal boundaries within which Ireland—and by implication other Member States—may recalibrate support to beneficiaries of temporary protection without crossing the constitutional or EU law thresholds of impermissible discrimination or inadequate subsistence.