Lovett v Minister for Education

JurisdictionIreland
JudgeMr. Justice Kelly
Judgment Date01 January 1997
Neutral Citation1996 WJSC-HC 4045
CourtHigh Court
Date01 January 1997

1996 WJSC-HC 4045

THE HIGH COURT

269 JR/1995
LOVETT v. MIN EDUCTION
JUDICIAL REVIEW

BETWEEN

JEREMIAH LOVETT
APPLICANT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

SECONDARY TEACHERS SUPERANNUATION (AMDT) SCHEME 1935 S R & O 48/1935 PARA 8(1)

TEACHERS SUPERANNUATION ACT 1928 S2

TEACHERS SUPERANNUATION ACT 1928 S3

TEACHERS SUPERANNUATION ACT 1928 S5

SECONDARY TEACHERS SUPERANNUATION SCHEME 1929 S R & O 19/1929

TEACHERS SUPERANNUATION ACT 1928 S3(1)(a)

TEACHERS SUPERANNUATION ACT 1928 S3(1)(d)

CITYVIEW PRESS V COMHAIRLE OILIUNA 1980 IR 381

CONSTITUTION ART 50

COX V IRELAND & ORS 1992 2 IR 503

OFFENCES AGAINST THE STATE ACT 1939 S34

OFFENCES AGAINST THE STATE ACT 1939 S34(1)

OFFENCES AGAINST THE STATE ACT 1939 S34(2)

OFFENCES AGAINST THE STATE ACT 1939 S34(3)

OFFENCES AGAINST THE STATE ACT 1939 S34(4)

OFFENCES AGAINST THE STATE ACT 1939 S34(5)

Synopsis:

CONSTITUTION

Legislation

Oireachtas - Power - Delegation - Minister - Scope of authority - Purpose of enactment - Pension scheme for teachers created and operated by Minister under statute - Scheme provided for forfeiture of pension rights in event of certain sentence being imposed on retired teacher on his conviction for criminal offence - Enactment contained no express or implied power to impose penalty in such circumstances - Forfeiture provisions of scheme made ~ultra vires~ respondent Minister of State - Contravention of Constitution's guarantee to protect property rights of citizen - (1995/269 JR - Kelly J. - 11/7/96) - [1997] 1 ILRM 89

|Lovett v. Minister for Education|

MINISTER OF STATE

Powers

Exercise - Validity - Challenge - Scheme - Pension scheme for teachers created and operated by Minister under statute - Scheme provided for forfeiture of pension rights in event of certain sentence being imposed on retired teacher on his conviction for criminal offence - Enactment contained no express or implied power to impose penalty in such circumstances - Forfeiture provisions of scheme made ~ultra vires~ respondent Minister of State - Contravention of Constitution's guarantee to protect property rights of citizen - (1995/269 JR - Kelly J. - 11/7/96)

|Lovett v. Minister for Education|

STATUTE

Instrument

Validity - Challenge - Grounds - Minister - Powers - Absence - Enactment authorised creation and operation of pension scheme for teachers - Scheme provided for forfeiture of pension right in event of certain sentence being imposed on retired teacher on his conviction for criminal offence - Enactment contained no express or implied power to impose penalty in such circumstances - Forfeiture provisions of scheme made ~ultra vires~ respondent Minister of State - Contravention of Constitution's guarantee to protect property rights of citizen - Secondary Teachers Superannuation (Amendment) Scheme, 1935 (S.R. & O. No. 48), article 8 - Teachers Superannuation Act, 1928 (No. 32), ss. 2, 3, 5 - Constitution of Ireland, 1937. Articles 40, 50 - (1995/269 JR - Kelly J. - 11/7/96) - [1997] 1 ILRM 89

|Lovett v. Minister for Education|

1

Judgment of Mr. Justice Kelly delivered the 11th day of July, 1996

FACTS
2

The Applicant is a married man with three children. He is almost forty eight years old. He took up the post of Principal of Ramsgrange Community School, County Wexford, on the 1st July, 1977. In October 1993, he was suspended from that position. His suspension arose following the discovery of irregularities in the finances of the school. For some months prior to his suspension, the Applicant had been absent from his post on grounds of ill health.

3

On the 25th November, 1993 he notified the first named Respondent (The Minister) of his wish to apply for early retirement on the grounds of infirmity. The application was not processed at that time. This was because of an apprehension on the part of the Minister that the Applicant might not be entitled to a retirement pension as he was under investigation concerning the irregularities. However, at the request of the Board of Management of the school, the Minister made ex-gratia payments to the Applicant in lieu of remuneration with effect from the date of his suspension. He has been paid £54,189.15 in total by way of such payments.

4

The investigation of the financial irregularities resulted in the Applicant being charged with offences of dishonesty. On the 24th January, 1995 he pleaded guilty to three charges which had been preferred against him. He was sent forward to the Circuit Court to be dealt with on foot of these pleas of guilty.

5

On the 4th March, 1995 the Applicant applied to the Minister for early retirement on the grounds of disability.

6

On the 9th June, 1995 a letter was sent from the Department of Education to the Applicant. It informed him that, in view of his plea of guilty in the District Court, the ex-gratia payments would cease with immediate effect. It also informed him that his application for retirement on the grounds of ill health was being processed and that a further letter in that regard would be sent. Such a letter was sent on the 21st June, 1995. It informed the Applicant that his application for early retirement on grounds of disability had been approved with effect from the 25th November, 1993. It further indicated that a payment on account in respect of his pension would issue to the Applicant on the 29th June, 1995. It also pointed out that the precise manner in which the lump sum would be dealt with would be the subject of a further letter which would be issued shortly thereafter.

7

Meanwhile, the Applicant's case before the Circuit Court was adjourned on a number of occasions. This was because the Circuit Judge indicated that he would not impose sentence until he was informed of the Applicant's position regarding his pension rights. These appeared to be dealt with in the letter of the 21st June, 1995 from the Department.

8

On the 6th July, 1995 the matter was finally dealt with before the Circuit Court. A suspended sentence of two years imprisonment was imposed.

9

On the 3rd August, 1995 the Department of Education wrote to the Applicant in the following terms:-

"Dear Mr. Lovett,"

10

I am directed by the Minister for Education to refer to your pension entitlements under the Secondary Teachers Superannuation Scheme.

11

Paragraph 8(1) of the Secondary Teachers Superannuation (Amendment) Scheme, 1935 ( Statutory Rules and Orders, 1935 No. 48) provides that where a person in receipt of a pension is sentenced to a term of imprisonment exceeding 12 months, such pension shall be forfeited as from the date of such conviction. This paragraph also provides that in these circumstances a sum equal to the difference between contributions made to the pension fund by a person and the amount of pension paid to that person shall be paid to him on forfeiture of pension. I enclose a copy of the relevant provisions for your information.

12

The Minister notes that on the 6th July, 1995 you were sentenced to two years imprisonment (suspended) by Wexford Circuit Court. In your case the amount of contributions made by you are less than the payments made to you, including the pension and lump sum gratuity payable to you and which has been applied to offset the ex-gratia payments made to you during your suspension. Accordingly, no further payments will be made to you from the pension scheme with effect from the 6th July, 1995, the date of your conviction and sentence."

13

This letter must have come as something of a shock to the Applicant since the letter from the Department of the 21st June, 1995 made no mention of the possibility of forfeiture pursuant to the relevant provisions of the scheme. Nor does it appear that the possibility of forfeiture of the pension was drawn to the attention of the learned Circuit Judge who imposed the two year suspended sentence. Mr. Collins, on behalf of the Minister, very fairly accepts that had the Circuit Judge been apprised of the accurate position on the pension he might well have imposed a different sentence.

14

It is the validity of the forfeiture and of Paragraph 8(1) of the scheme that is at issue in these proceedings.

THE STATUTORY BACKGROUND
15

Section 2 of the Teachers Superannuation Act, 1928empowers the Minister for Education with the consent of the Minister for Finance to prepare, in relation to any particular class or classes of teachers, a scheme with the object of providing pensions and gratuities for or in respect of the teachers in question and to carry such scheme into execution.

16

Section 3 of that Act sets out the provisions which may be contained in such a superannuation scheme. It provides as follows:-

17

2 "3(1). A superannuation scheme may contain provisions in relation to all or any of the following matters, that is to say:-

18

(a) the setting up of a pension fund for the purposes of such scheme and the administration of such fund;

19

(b) the payment into such fund by teachers to whom such scheme applies of such contributions as may be prescribed by such scheme;

20

(c) the payment into such fund of such monies as may be provided by the Oireachtas for the purposes of such scheme;

21

(d) the payment out of such fund to or in respect of teachers to whom such scheme applies of pensions and gratuities at such rates in such manner and on such conditions and restrictions (including restrictions on alienation) as may be prescribed by such scheme.

22

(2) A superannuation scheme may authorise the deduction of such sums as may be prescribed by such scheme from or in respect of salaries or other payments payable to teachers to whom such scheme applies and the payment of the sums so deducted into the pension fund set up under such scheme.

23

(3) A superannuation scheme may (in addition to or without the deductions mentioned in the foregoing subsection)...

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