P.C. v Minister for Social Protection

JudgeMr. Justice Binchy
Judgment Date29 April 2016
Neutral Citation[2016] IEHC 315
Docket NumberRECORD NO: 2013/6753P
CourtHigh Court
Date29 April 2016





[2016] IEHC 315

Binchy J.

RECORD NO: 2013/6753P


Constitution – Right to livelihood – Validity of S. 249(1) of the Social Welfare (Consolidation) Act, 2005 – Disqualification to receive state pension (contributory) – Human Rights – The European Convention on Human Rights (ECHR) Act, 2003

Facts: The plaintiff sought a declaration that s. 249(1) of the Social Welfare (Consolidation) Act, 2005, was contrary to the Constitution and art. 1 of the Protocol 1 of the European Convention on Human Rights Act, 2003. The plaintiff claimed that notwithstanding his conviction for committing various sexual offences, he was still entitled to receive state pension (contributory) under s. 249(1) of the 2005 Act. The plaintiff being in prison claimed that disqualification from entitlement to pension for which he had made contributions was a vested property right. The defendant contended that the entitlement to state pension was a statutory right and its payment was subject to the fulfilment of certain qualifying conditions, which could not be equated with property rights as guaranteed under the Constitution. The plaintiff also argued that deprivation of state pension (contributory) to an imprisoned person would be nothing but an imposition of additional penalty and thus, punitive in nature.

Mr. Justice Binchy dismissed the proceedings. The Court held that s. 249(1) of the 2005 Act was neither discriminatory nor repugnant to the Constitution as it merely suspended the receipt of the state pension while the person was incarcerated. The Court held that said s. 249 (1) equally applied to the person staying outside the State and hence objections of inequality could not stand. The Court found that since the prisoners became entitled for receiving the state pension after their release, the said section was not punitive in nature. The Court found that since the rationale for providing social welfare benefits was to provide means of livelihood to the retired persons, its suspension to the prisoners was justified as during incarceration, the prisoners were maintained by the State. The Court found that in the absence of any claim for inhuman and degrading environment in the prison, such as lack of basic amenities or harassment, the case under European Convention on Human Rights (ECHR) Act, 2003, would not be maintainable. The Court opined that the applicant's objection that provisions relating to suspension was not applicable to the prisoners in receipt of private pensions and thus contrary to art. 40 of the Constitution would be of no avail as receipt of private benefits and public benefits could not be compared with same parameter. The Court held that receipt of state pension being a public welfare benefit in which the major contributory was the State was a statutory right and not a property right and thus, the State had been conferred discretion to impose reasonable restriction upon its payment to the concerned persons.

JUDGMENT of Mr. Justice Binchy delivered on the 29th day of April, 2015

The plaintiff in these proceedings seeks to challenge the constitutionality of s. 249(1) of the Social Welfare (Consolidation) Act, 2005, (hereinafter 'the Act of 2005'), which operates to disqualify the plaintiff from receiving payment of the State Pension (Contributory) (hereinafter 'SPC') while imprisoned. The matter came on for hearing on 12th November, 2015 and was heard by the Court over a period of four days, concluding on 18th November, 2015.


Specifically, the plaintiff seeks a declaration that s. 249(1) of the Act of 2005 is incompatible with Articles 34, 38, 40.1, 40.3 and/or 43 of the Constitution. The plaintiff also seeks damages in respect of the alleged breach of his constitutional rights. Furthermore, the plaintiff seeks an injunction directing the defendants to make provision in law for the payment to the plaintiff of the SPC. The plaintiff also claims that s. 249(1) operates in breach of his rights under Articles 3,5,6, and 8, (in conjunction with Article 14) and 13 and Article 1 of Protocol 1 of the European Convention on Human Rights (hereinafter 'the Convention'), and seeks a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that s.249(1) of the Act of 2005 is incompatible with the Convention. The plaintiff also seeks damages pursuant to section 5 of that Act.


Section 249(1) states:

'Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part 2 (including any increase of benefit) for any period during which that person –

(a) is absent from the State, or

(b) is undergoing imprisonment or detention in legal custody.'

Background facts:

The plaintiff is a seventy five year old man who is currently serving a period of imprisonment in a prison within the State. The plaintiff was tried and convicted on 25th March, 2011 of 60 counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended, and 14 counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act 1981 as amended. The offences were committed against a family member. Consequent upon his conviction, the plaintiff was duly registered as a sex offender by order of the Court dated 26th May, 2011. On 26th May, 2011 the plaintiff was sentenced to a period of ten years imprisonment in respect of the convictions for sexual assault and to fifteen years imprisonment in respect of the convictions for rape. The final three years of the latter sentence were suspended, and both sentences were to run concurrently.


The plaintiff has worked in the State for most of his life and throughout his life has made Pay Related Social Insurance ('PRSI') contributions. Owing to these contributions, the plaintiff is an insured person for the purpose of the Act of 2005. On 10th February, 2005 the plaintiff was awarded 98% (standard rate) of the State Pension (Transition). However, it was clarified by counsel for the defendants, that the plaintiff was in fact entitled to, and was subsequently awarded 100% (standard rate) State Pension (Transition). The State Pension (Transition) was a non means tested payment, paid to retired persons aged 65 until they reach 66 when they become entitled to SPC, who had paid sufficient social insurance contributions, but who by reason of not yet having reached the age of 66, were not yet eligible to receive payment of the SPC. As of that date, the plaintiff was also eligible for and received an increase for a qualified adult in respect of his partner and an increase of qualified child in respect of three dependant children, as well as a fuel allowance.


The plaintiff was automatically transferred to the SPC on the 10th February, 2006, having attained the age of 66, and having complied with the provisions of s.108 and s.109 of the Act of 2005. The plaintiff became entitled to, and received the SPC from that date. Upon his leaving the family home on 11th October, 2006, the increase for a qualified adult and the increase for qualified a child were terminated on 12th October, 2006. The plaintiff received the SPC from that date until 18th March, 2011, which was the week preceding his conviction. Thereafter, the defendant did not pay the pension to the plaintiff, who, having commenced a sentence of imprisonment was disqualified under s. 249(1) from receiving the SPC. This was confirmed in correspondence sent by the first named defendant to the plaintiff on 14th December, 2012.


In his statement of claim, the plaintiff pleads that by reason of the termination of his SPC, his entitlement thereto has been abrogated and that he has been left practically destitute, having no other source of income while in prison, apart from a prison gratuity. The plaintiff initially received €18.90 per week from the prison authorities while incarcerated; at that stage, the plaintiff was on an enhanced regime within the prison. However, that amount was reduced to €11.90 per week, owing to the plaintiff's inability to work within the prison. The plaintiff particularises the disadvantages he faces by virtue of his limited means, which he alleges stems from the refusal of the second named defendant to pay to him his SPC while imprisoned. These disadvantages include the fact that the plaintiff has no money to spend on: items in the prison tuck shop; clothing; or electrical goods such as an X-box or a DVD player. The statement of claim also particularises that while each prison cell is equipped with a kettle and tea, the plaintiff cannot afford coffee, which he enjoys. It was also pleaded that the plaintiff cannot afford to buy items of clothing and relies on the clothing provided by the prison service or by the St. Vincent de Paul Society.


The plaintiff also pleads that he suffers from age related ailments including hypertension and also a wrist injury. This is an injury the plaintiff alleges resulted from an accident which occurred in prison. However, these conditions are denied in the defence of the defendant. It is common case that if the plaintiff was available for work in the prison he could earn an extra €3.50 per week, bringing his weekly prison allowance to a total of €15.40.

Evidence given at trial

Evidence was given by the plaintiff in relation to his work history and his PRSI contributions. The plaintiff confirmed that he qualified for the State pension (transition) upon attaining the age of 65 and thereafter, having attained the age of 66 he received the SPC until he was tried and convicted of the offences detailed...

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1 cases
  • P.C. v Minister for Social Protection, Ireland
    • Ireland
    • Supreme Court
    • 27 July 2017
    ...4 The appellant's claim came before the High Court (Binchy J.), who delivered a carefully considered judgment on the 29th April, 2016 ( [2016] IEHC 315), dismissing the case. On the 15th December, 2016, leave was granted to appeal directly to this Court from the High Court pursuant to Arti......

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