P.C. v Minister for Social Protection, Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 27 July 2017
• Neutral Citation: [2017] IESC 63
• Court: Supreme Court
• Docket Number: [Record No. 89/2016]
• Date: 27 July 2017

BETWEEN:

P.C.

APPELLANT

AND

THE MINISTER FOR SOCIAL PROTECTION, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2017] IESC 63

MacMenamin J.

Denham C.J.

McKechnie J.

Clarke J.

MacMenamin J.

O'Malley Iseult J.

[Record No. 89/2016]

THE SUPREME COURT

Constitutional rights – State Pension Contributory – Damages – Appellant seeking damages in respect of an alleged breach of constitutional rights – Whether appellant was entitled to the State Pension Contributory

Facts: The first respondent, the Minister for Social Protection, by reason of s. 249 (1) of the Social Welfare (Consolidation) Act 2005, ceased payment of the State Pension Contributory (SPC) to the appellant from the date of the appellant's detention in prison. The appellant sought: a declaration that s. 249 (1) was incompatible with Articles 34, 38, 40.1, 40.3 and 43 of the Constitution; damages in respect of the alleged breach of constitutional rights; an injunction directing the respondent to make provision in law for the payments to him of the SPC; declarations that s. 249(1) operated in breach of his rights under Articles 3, 5, 6 and 8, in conjunction with Article 14 and Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR); and, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that the impugned provision was incompatible with the ECHR. The appellant's claim came before the High Court. Binchy J, on the 29th April, 2016, dismissed the case. On the 15th December, 2016, leave was granted to appeal directly to the Supreme Court from the High Court pursuant to Article 34.5.4 of the Constitution. Two main constitutional issues fell for consideration. These issues were, first, the extent of the appellant's entitlement to the SPC, and second the effect of the section, which the appellant contended, provides for a "non-judicial" sanction or punishment, which is also indiscriminate and arbitrary.

Held by MacMenamin J that the State may not operate a disqualification regime that applies only to convicted prisoners and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender.

MacMenamin J held that in light of the fact that the parties did not have the opportunity of addressing the Court in relation to the question of remedy, he would adjourn the matter for a limited period in order to allow the parties to make submissions on the question of a remedy, on the facts of the case. MacMenamin J also proposed that counsel be then heard in relation to a cross-appeal which was brought in relation to the trial judge's decision to award costs to the appellant, despite his conclusions on the outcome of the case.

Other.

Judgment of Mr. Justice John MacMenamin dated the 27th day of July, 2017

1 By reason of the statutory provision impugned in these proceedings, (s.249 (1) of the Social Welfare (Consolidation) Act, 2005), ('s.249 (1)'), the first named respondent ('the Minister'), ceased payment of the State Pension Contributory ('SPC') to the appellant, from the date of the appellant's detention in prison. The appellant challenges the constitutionality of this provision. This judgment addresses that issue, and thereafter briefly considers the issues of the nature of the order and remedy, which are required in the interests of justice.

The Appellant

2 The appellant in these proceedings was born in 1940. He spent most of his life living and working in the State. He made sufficient contributions to render him eligible for what was then known as the contributory old age pension, now called the State Pension Contributory ('SPC'). On attaining the age of 66 years in 2006, he commenced receiving the SPC.

Convictions

3 The information before the Court is that, in 2011, the appellant was convicted on a number of counts relating to serious offences committed against a family member. He was subsequently sentenced to a lengthy term of imprisonment. His anticipated release date is in 2020.

The Appellant's Claim

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 Article 34.5.4 of the Constitution.

The Proceedings

5 In the High Court judgment ( [2016] IEHC 315), now under appeal, the appellant sought, in summary, a declaration that s.249(1) of the Act of 2005 was incompatible with Articles 34, 38, 40.1, 40.3 and 43 of the Constitution; damages in respect of the alleged breach of constitutional rights; an injunction directing the respondent to make provision in law for the payments to him of the SPC; declarations that s.249(1) operated in breach of his rights under Articles 3, 5, 6 and 8, in conjunction with Article 14 and Article 1 of Protocol 1 of the European Convention on Human Rights ('ECHR'); and, finally, a declaration pursuant to s.5 of the European Convention on Human Rights Act, 2003, that the impugned provision was incompatible with the ECHR.

The Impugned Provisions

6 Section 249(1) provides:

'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 penal servitude, imprisonment or detention in legal custody ...' (Emphasis added)

' Benefits' under part (2) are defined as including: disability benefit, maternity benefit, health & social benefit, adoptive benefit, unemployment benefit, occupational injuries benefit, carer's benefit, old age (contributory) pension, retirement pension, invalidity pension, widow(er) (contributory) pension, orphans (contributory) allowance, bereavement grants, and widowed parent grant.

The Remainder of the Section

7 It can be said, therefore, that the provision has a broad effect on persons subject to imprisonment having been convicted of offences warranting such sanctions. However, s.249 (1) (A) of the Act of 2005 makes a different form of provision in relation to other categories of persons who might also be subject to detention by creating exceptions. Thus, it further provides:

'(1A) A person shall not be regarded as undergoing detention in legal custody for the purposes of entitlement to disability allowance while the person is detained for treatment pursuant to -

(a) an admission order or renewal order made under the Mental Health Act 2001,

(b) an order made under section 38 of the Health Act 1947,

(c) an order made under section 4 or section 5 of the Criminal Law (Insanity) Act 2006,

(d) an order made under section 17 of the Lunacy (Ireland) Act 1821, or

(e) an order made under section 2 of the Trial of Lunatics Act 1883.' (Emphasis added)

There is a clear distinction, therefore, between those different categories of person identified in the two sub-sections, insofar as the cause of detention is concerned. The nature and effect of this, and other distinctions, is considered in this judgment, in the context of where it may be said the provision actually has effect.

Section 249(6)

8 Section 249(6) of the Act provides:

'(6) A person shall be disqualified for receipt of unemployment assistance, pre-retirement allowance, disability allowance or farm assist while he or she is -

(a) resident, whether temporarily or permanently, outside the State, or

(b) undergoing penal servitude, imprisonment or detention in legal custody.' (Emphasis added)

The Regulations

9 Subsequent to the enactment, a number of regulations were promulgated by statutory instrument under s.249 (1). By virtue of powers conferred by s.4 of the Act of 2005(as amended by s.17 and Schedule 3 of the Social Welfare Law Reform and Pensions Act, 2006 (No. 5 2006); and s.249 (as amended by s.4 and 17 and Schedule 1 and 3 of the Social Welfare Law Reform and Pensions Act, 2006), of the Social Welfare Consolidation Act, 2005 (No. 26 of 2005), the Minister provided that the Social Welfare (Consolidated Payments Provisions) Regulations, 1994 ( S.I. 417 of 1994) ('The Principal Regulations') be amended by inserting, -pursuant to Article 3 of the Social Welfare (Consolidated Payments Pensions) (Amendment) (No. 9), Loss of Purchasing Power Regulations 2000 ( S.I. No. 160 of 2000), - into Part VI of the Principal Regulations ( S.I. 417 of 1994), a new chapter, 'Chapter 2A' whereby articles 123A–F provide for payments in respect of loss of purchasing power and costs in circumstances where there has been a delay of 12 months or more in the processing of an application for any benefit.

10 Pursuant to sections 4 and 249 of the Act of 2005, the Minister also promulgated the Social Welfare (Consolidated Claims, Payments and Control) Regulations, 2007, ( S.I. No. 142/2007, as amended by the Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 1) (Absence from State) Regulations, 2017 ( S.I. 12/2017), modifying the statutory regime. In particular, by means of S.I. 142 of 2007, Part VII, Chapter 4, articles 217 -219, are to the effect that, notwithstanding s.249 of the 2005 Act, a person who is absent from the State shall not be disqualified from receiving, among other pensions, the SPC. The effect of these further regulations, collectively referred to as the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 to 2017, is significant; as articles 218 -219 of S.I. 124/2007 extend the range of exceptions to the 'disqualification effect' of s.249(1). Thus, in addition to the categories of prisoner identified, the effect of the Regulations falls only on prisoners found guilty and detained on foot of conclusive convictions by a court of law, but excludes prisoners otherwise detained, and eligible persons absent...