THE HIGH COURT has dismissed a convicted rapist’s constitutional challenge against a law preventing prisoners over 65 years from receiving the state pension while they are serving custodial sentences.
The man, who cannot be identified for legal reasons, is serving a 12-year prison sentence after he was convicted in 2011 by a jury at the Central Criminal Court of multiple charges of raping and sexually assaulting his daughter.
Following the 75-year-old’s conviction he was disqualified from receiving the pension payment of €230 per week. He claimed this amounted to an extra judicial punishment imposed by the State which it is not entitled to impose.
It was estimated he would lose out on more than €95,000 in pension payments because of the disqualification order.
Due for release in three years
In a detailed judgment Mr Justice Donald Binchy dismissed the man’s action. The man had no right to receive the pension while in prison. The judge also rejected claims the man’s rights under the European Convention of Human Rights had been breached arising out of the disqualification order.
The action was against the Minister for Social Protection, Ireland and the Attorney General. They opposed the action. The Irish Human Rights Commission was a notice party.
With full remission the man is due for release in approximately three years’ time. He will receive pension payments on his release.
The man claimed section 249.1 of the 2005 Social Welfare Consolidation Act, which “disqualifies” prisoners of pensionable age from receiving the State Pension (contributory) or old age pension, breaches provisions of the Irish Constitution and the European Convention on Human Rights.
He sought declarations from the court the section of the Act is unconstitutional as well as being incompatible with the ECHR. He also wanted to he be paid the pension, and damages.
The State denied the section of the act is incompatible with the Constitution or the ECHR. It is also denied the disqualification was a punishment.
In his judgment Mr Justice Binchy said the man worked at various jobs all his life and had made enough social insurance contributions to entitle him to the the full amount of state pension.
The man does not have a constitutionally protected right to receive payment of the pension simply because he has made the required number of PRSI contributions during his working life.
The right to receive this payment “is a statutory right only” and is “subject to conditions of eligibility laid down by the Oireachtas” the Judge said.
Section 249.1 does no more than “suspend payment of the benefit in certain circumstances,” including when a person is being imprisoned at the cost of the state, he said.
Since the pension is to assist the individual it is “perfectly rational” the benefit should not be paid when the person is being maintained by the state, the Judge added.
If the benefit was paid during time in prison the person would “have the ability to accumulate a lump sum,” which they would not have got only for the fact that person was incarcerated.
No discrimination
The Judge also ruled the section challenged was not punitive in its intent. The section did not result in discrimination of the man’s right to equal treatment under the Irish Constitution or the European Convention of Human Rights.
The man says he is unable to do any prison work on health grounds, is destitute in prison. The only money he gets is a prison gratuity of €11.90 per week.
The Judge said while the man was subject to hardship he was not satisfied the complaints were of a sufficiently serious nature to establish a violation of his right to personal autonomy.
The case was adjourned to allow both sides consider the court’s judgment.
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