A convicted rapist who successfully challenged the constitutionality of a law preventing payment of the State’s old age pension to prisoners in custody is entitled to €10,000 compensation including unpaid pension arrears, the Supreme Court has ruled.
Last July, the five-judge court unanimously concluded Section 249.1 of the Social Welfare Consolidation Act 2005 is unconstitutional but deferred making any declaration or order pending submissions.
Section 249.1 disqualifies otherwise qualified persons for various welfare benefits from receiving “any” of those benefits, including the old age contributory pension, while imprisoned or detained in legal custody.
The Supreme Court said the State may not operate a disqualification regime that applies only to convicted persons because it constitutes an additional punishment not imposed by a court dealing with an offender.
It adjourned the matter to consider further argument on the precise order to be made and to determine if the man, who cannot be identified to protect his victim, was entitled to “substantial” damages.
On Wednesday, the court formally declared the relevant section to be invalid and in breach of the Constitution.
In his judgement, Mr Justice Donal O’Donnell said he hoped the Oireachtas would address the pension issue in a comprehensive and humane way and produce an outcome consistent with the Constitution.
The man would have had an entitlement to the old age pension had it not been for Section 249.1.b, he said.
While the man’s capacity to recover damages was significantly limited, he was entitled to €10,000 compensation, including arrears for unpaid pension of which €7,500 has already been paid on account, he said.
The Chief Justice, Mr Justice Frank Clarke, Mr Justice Liam McKechnie and Ms Justice Iseult O’Malley agreed with Mr Justice O’Donnell.
Mr Justice John MacMenamin disagreed on the damages issue, saying the man had no entitlement to damages given the Section was declared invalid only from this date, November 28th.
All five judges said the Supreme Court has jurisdiction to delay the making of a declaration of constitutional invalidity or to make a deferred order but all emphasised this jurisdiction should be exercised sparingly.
Mr Justice O’Donnell said the court should be slow to grant a declaration of invalidity “to create by default a form of legislation of general application”, which the Oireachtas would plainly not have enacted and which would extend the financial burden on the State and its citizens without sanction of the Dáil.
The Minister for Social Welfare could never lawfully have paid the pension to the applicant and was bound by law to apply Section 249.1.b, he said.
All such factors meant the court was obliged to fashion an “appropriate remedy” in this case rather than adopt the general approach of consequential invalidity.
The 76 year old applicant was jailed after he was convicted on 14 counts of rape and 60 counts of sexual assault against a family member.
During his working life he made PRSI contributions and, when he retired in 2005, got the State contributory pension but, after his conviction in 2011, that payment stopped.
He took proceedings arguing Section 249.1 is incompatible with the Constitution and European Convention on Human Rights, and also sought damages.
After the High Court rejected his challenge, he got permission to appeal to the Supreme Court.
The core issue was whether a prisoner has a constitutional right to payment of the State contributory pension.
The man’s weekly prison allowance is €11.90, less than the normal weekly allowance of €18.90 due to his inability to engage in work activities in prison.He claimed he had insufficient funds to buy items in the prison tuck shop, relied on clothes provided by the prison service or St Vincent de Paul and that some other prisoners had access to non-State pensions.
In July, Mr Justice MacMenamin, giving the Supreme Court’s unanimous judgment, said, while the State argued the law was intended to prevent “unjust enrichment” of prisoners, its true effect “can be described as punitive, retributive, indiscriminate and disproportionate”.
The measure is an additional punishment not imposed by a court and breaches the separation of powers, he said.