P.C. and The Minister for Social Protection, Ireland and the Attorney General
In July 2017 the Supreme Court issued a ruling in relation to the receipt of the State Pension Contributory (SPC) by old age prisoners. The Court ruled that the legislation governing the entitlement of prisoners to the SPC was invalid and that to disqualify a prisoner from receipt of such payment constituted an additional punishment, not imposed by the sentencing court.
The legislation governing this issue is section 249(1)(b) of the Social Welfare (Consolidation) Act 2005 which states provides that a person shall be disqualified from receiving any social welfare benefit for any period during which that person is undergoing penal servitude, imprisonment or detention in legal custody.
The appellant became eligible for the SPC on attaining the age of 66 years in 2006. Payments of SPC to the appellant ceased in 2011 following his conviction and sentencing.
It was put forward by the Minster that should the appellant receive his state pension whilst imprisoned it would result in the “unjust enrichment” of the appellant insofar as the SPC exists as provision for the “physical and medical needs of persons who are no longer of working age”. The Minister contended that the appellant is already provided for by the Irish Prison Service and that the provision forms part of a scheme of “single maintenance” whereby the State should not pay for the maintenance of an individual more than once. Additionally, counsel for the Minister submitted that such the disqualification of prisoners from the receipt of the SPC was a “rational, proportionate policy choice” which exists as a measure to ensure that prisoners do not profit from their wrong-doing.
In their judgment, the Court found it most necessary to consider two key issues relevant to the appellant. Firstly the Court examined whether or not a legal entitlement to the SPC existed by way of a property right within the meanings of Articles 40.3.1 & 2 and Article 43 of the Constitution. It was held by the Court that the entitlement at issue could best be described as “a qualified entitlement derived from statute”. In reaching this conclusion, McMenamin J referred to previous decisions of the Courts such as Cox v. Ireland  2 I.R. 509 and Lovett v. Minister for Education, Ireland & The Attorney General (The High Court, Kelly J, 1996, unreported) where the court found that the right to a pension was a protected constitutional right. In the instant case however, it was found that it was unnecessary to hold that the statutory entitlement holds all the attributes of a property right but that the provision is mandatory and that the disqualification from its receipt adversely affects some prisoners more than others.
Secondly, the court sought to address the issue of whether such a disqualification is a non-judicial punishment which may be arbitrary and discriminatory, operating without any proportionality consideration. The Court recognised that due to the statutory nature of the provision that a “ministerial discretion” may be relevant to the case but that certain exceptions in relation to the disqualification exist in the legislation such as prisoners who are acquitted, a finding of not guilty by reason of insanity and the detention of a person for the treatment of a mental illness. The Court noted that no such exceptions existed for prisoners such as the appellant. The Court found that the effect of the statute is that of a sanction not imposed by a court of law and is therefore in breach of articles 34 and 38 of the Constitution. As a result, section 249(1) of the Social Welfare (Consolidation) Act 2005 was found to be invalid.
Regarding remedies for the appellant, the Court recognised the complexity of the issues at stake and did not hold that the invalidity of section 249(1) meant that prisoners must receive full payment of the relevant benefit whilst incarcerated. The statutory scheme for compensation orders as set out under ss. 6 to 9 of the Criminal Justice Act 1993 as amended provides for the compensation of injured parties. It was suggested by the Courts that as a consequence of the instant case a sentencing court will now be able to consider future social welfare payments as a source of compensation for victims of crime. Additionally, it was noted that as the responsibility of seeking a remedy for the breach of constitutional rights falls upon the Court that it would be appropriate for both the Oireachtas and Counsel for the appellant to make submissions on the question of remedy for the instant case in addition to a cross appeal being heard relating to the trial judge’s decision to award costs to the defendant in spite of the outcome of the case.