EU court to decide if full-time care provided in exchange for food and housing is ‘work’

The Supreme Court has referred the issue of whether providing full-time care in exchange for bed and board constitutes “work” to the Court of Justice of the European Union (CJEU) in Luxembourg.

In a highly significant, unpublished decision relating to whether care work without the payment of wages is “work” for the purposes of residency rights, the five judges of the Supreme Court say the case “raises some important issues” as to how European Union rules on the freedom of movement for EU citizens should be applied.

The CJEU, the judicial branch of the EU, ensures EU law is applied uniformly across all member states.

The case relates to a Romanian national, referred to as “AN”, who came to Ireland in September 2021 with her husband to live with their daughter and son-in-law and to provide full-time care to her primary-school-age grandsons, both of whom have autism and complex additional needs.

Her daughter and son-in-law, who arrived in Ireland in 2013, are both frontline healthcare workers.

AN gave up a career in the financial sector in Romania to come to Ireland. Her husband had a weekly Romanian pension of approximately €119.

In January 2022 she applied for a carer’s allowance, a means-tested payment for which recipients must be providing full-time care and habitually resident in Ireland.

Her application was refused on the grounds she was not habitually resident as she did not have a right to reside in Ireland.

Under a 2004 EU directive citizens can reside in another member state if they are workers or self-employed, or if they have sufficient independent resources to ensure they do not become a burden on the host state’s social protection system.

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The refusal of the carer’s allowance was upheld following an appeal within the Department of Social Protection. AN and her husband returned to Romania in May 2024.

In October 2024 she was given leave to seek judicial review of the decision in the High Court, with the Irish Human Rights and Equality Commission a notice party.

Her counsel Derek Shorthall and Maeve Cox, instructed by KOD Lyons solicitors, argued under EU law that AN, an EU national, was providing 35 hours of care weekly to her grandsons in exchange for lodgings, food and expenses. She was “a worker for the purposes of EU law”, counsel argued, entitled to reside in Ireland and, as her grandsons met the care threshold for the carer’s allowance, entitled to the payment.

Upholding the Department of Social Protection’s refusal of the carer’s allowance to AN, Judge Anthony Barr in his August 2025 decision said the woman’s daughter and son-in-law as frontline health workers had “served the State and the people of Ireland with courage and at a great personal sacrifice during the Covid-19 pandemic”.

“They find themselves in an almost intolerable position where they have to work every available hour so as to obtain funds to provide privately funded therapy for their two sons who have extensive special needs.”

He said if AN and her husband had travelled from “Waterford or Galway” instead of Romania to care full-time for her grandchildren “there is little doubt in my mind but that she would have been entitled to receive carer’s allowance”.

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While his judgment might be legally correct, he said, it was “hardly just that a grandmother, who is an EU citizen, who travelled from Romania to Dublin to do the same thing, should be denied this payment because she was unlucky enough to fall foul of the provisions of EU law and Irish law relating to the acquisition of a right of residence in the State as a worker”.

Referring the case to the CJEU, the Supreme Court said the “appeal raises an important issue as to the meaning of ‘workers’ as that word is used in Article 7 (1) (a) [of the 2004 EU directive]”.

Referring the previous CJEU case law, the court noted that to be regarded as a “worker” a person “performs services for, and under the direction of, another in return for which he or she receives remuneration”.

It seemed “clear”, said the judges, “remuneration need not be by payment of wages, but may consist of benefits in kind as consideration for the services performed”.

In referring the case, the court was “of the view that it is unclear whether, in the circumstances of the present case, the appellant must be regarded as a ‘worker’ within the meaning of article 7 (1)(a)”.