Rapist wins right to pension in jail

A rapist has successfully challenged the constitutionality of a law stopping payment of the old-age pension to prisoners and is entitled to €10,000 in compensation.

Rapist wins right to pension in jail

A rapist has successfully challenged the constitutionality of a law stopping payment of the old-age pension to prisoners and is entitled to €10,000 in compensation.

The landmark Supreme Court ruling could potentially open the way for other prisoners to lodge claims from today for welfare payments to which they would be entitled.

The five-judge court unanimously concluded that the relevant law, Section 249.1 of the Social Welfare Consolidation Act 2005 — which disqualifies persons otherwise qualified for various welfare benefits from receiving “any” of those benefits, including the old age contributory pension, while imprisoned or detained in legal custody — was unconstitutional.

The court formally declared the relevant section of the 2005 Act to be invalid and in breach of the Constitution.

It held that 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.

Following its decision, the court adjourned the matter to consider further legal argument as to the precise form of order which should be made and to determine if the man, who cannot be identified to protect his victim, was entitled to substantial damages.

In his judgement, Mr Justice Donal O’Donnell said he hoped the Oireachtas would address the question in a comprehensive and humane way and would produce an outcome consistent with the Constitution.

The Department of Justice declined to comment on the case’s potential implications.

The judge also said the man would have had an entitlement to the old age pension had it not been for the existence of Section 249.1.b.

While the man’s capacity to recover damages was significantly limited, he was entitled to recover arrears for unpaid pension and should receive €10,000 in compensation.

The court noted that some €7,500 of that sum has already been paid on account.

The Chief Justice, Mr Justice Liam McKechnie, and Ms Justice Iseult O’Malley concurred with Judge O’Donnell’s findings. Mr Justice John MacMenamin expressed a different view on that issue after holding that the man had no entitlement to damages on the basis that the section was invalid only from yesterday’s date.

The judges were unanimous that the Supreme Court does have a jurisdiction to delay the making of a declaration of invalidity or to make a deferred order.

The case was brought by a 76-year-old prisoner jailed for 12 years 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. After his conviction in 2011, that payment stopped.

He took High Court proceedings over that, seeking a declaration that Section 249.1 is incompatible with the Constitution and European Convention on Human Rights and sought damages.

After the High Court rejected his challenge, he was given 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 State opposed the challenge.

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 and relied on clothes provided by the prison service or St Vincent de Paul. He also argued some other prisoners had access to non-State pensions.

In July, Mr Justice MacMenamin, giving the 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”.

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