About this case:

• Citation:
  [2024] IEHC 418
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Bolger opined: “The basis for this aspect of the applicant’s challenge is unclear both in terms of the evidence and the law. The applicant seeks a declaration that is close to asking the court to direct the Oireachtas on what should be legislated for and how that should be done, which of course cannot be appropriate.”

Patricia Brazil SC, Derek Shortall SC and Neil Rafter BL appeared for the applicant, and Eileen Barrington SC, Douglas Clarke SC and Ellen Gleeson BL appeared for the respondents.

Background

The applicant’s disability allowance was suspended whilst he was in prison, and he was required to re-apply for the allowance upon his release.

The applicant sought a review of the decision to suspend his disability allowance, which was refused by the minister on 5 May 2022 on grounds that he did not meet the qualifying criteria in s.210(1)(ba) and (bb) of the Social Welfare Consolidation Act 2005.

The applicant issued judicial review proceedings seeking certiorari of this decision, as well as declarations of unconstitutionality of s.210(1)(ba) and (bb) on grounds that same constituted non-judicial punishment contrary to Articles 34 and 38 of the Constitution and treated the applicant unequally contrary to Article 40.1.

The applicant also sought a declaration pursuant to s.5 of the European Convention on Human Rights Act 2003 that s.210(1) was discriminatory, and a declaration that he is entitled to the automatic reinstatement of his disability allowance upon his release.

The High Court

Ms Justice Bolger began by setting out s.210 of the 2005 Act. The judge highlighted that whilst it was not impugned in the application before her, s.249 of the 2005 Act also merited consideration as it automatically disqualifies those in prison.

The court considered the history of disability allowance, tracing its origin to s.50 of the Health Act 1953, and set out the eligibility criteria for disability allowance — that a person is disabled and would be able to undertake suitable work if not for their disability.

Ms Justice Bolger summarised the minister’s submissions that the purpose of the allowance is to support those who cannot work due to their disability, rather than those who cannot work for other reasons such as incarceration.

The minister contended that an administrative arrangement is in place whereby a person who spends less than six months in prison is automatically reverted to their disability allowance, but a person serving a greater sentence must reapply upon their release. The applicant condemned this arrangement as unlawful.

Constitutionality

Ms Justice Bolger confirmed that whilst the constitutionality of a provision is open to challenge in judicial review proceedings, as appears from her decision in Z.G. & Anor v Ireland [2024] IEHC 413, a plenary hearing is more suitable and the limitations of judicial review in this context were observable in the case before her based upon the limited affidavit evidence of the factual basis for the applicant’s challenge, his financial circumstances whilst in prison and the circumstances of his release.

In this regard, the judge remarked: “Grounding a challenge to the constitutionality and consistency with the ECHR of legislative provisions on limited and unclear evidence is not helpful.”

The court noted the applicant’s reliance on P.C. v. Minister for Social Protection [2017] IESC 63, which concerned the disqualification pursuant to s.249(1) of the 2005 Act of a prisoner from payment of his State pension. The Supreme Court in P.C. described the removal of the pension as a sanction “not imposed by a court of law” which was intended to be punitive, and applying the principles in Enright v. Ireland [2003] 2 I.R. 321, found that this was punishment within Article 38 of the Constitution that could only be imposed by an Article 34 court and struck the provision down.

The minister distinguished P.C. on the basis of the legislative history of the provisions, and the means-tested nature of the disability allowance versus the contributory nature of the State pension.

Ms Justice Bolger did not consider P.C. to require her to condemn s.210(1), observing that this section “requires an applicant for disability allowance, along with a number of other working age social welfare payments, to establish that they have a disability as a result of which — and for no other reason — they are restricted in undertaking suitable employment. The applicant’s ineligibility was because his incarceration restricted him in undertaking suitable employment, in addition to his disability. Therefore, once he was sent to prison, he no longer qualified as his disability was not the only reason for his restriction in undertaking suitable employment.”

Opining that the applicant’s ineligibility was not a punishment, the judge continued that this is “but one of the many consequences a lawful deprivation of liberty will have on a person who is required by law to spend time in prison” and found the Enright criteria to be inapplicable.

Turning to the applicant’s argument based upon Article 40.1, the court considered that the basis for the applicant’s and his chosen comparator’s detentions were “entirely different”, as his comparator was detained for treatment, and the applicant was detained for reasons connected with his charge or conviction for an offence.

Ms Justice Bolger found: “The Oireachtas has chosen to treat detention for treatment differently to detention of a person in prison, in relation to disability allowance. Both disabled persons are detained but on a different legal basis and are, therefore, in very different positions. This does not allow an Article 40.1 comparison to be made.”

This choice fell short of the “arbitrary, capricious or irrational considerations” impugned in Donnelly v. Minister for Social Protection [2022] IESC 31 and O’Meara v. Minister for Social Protection [2024] IESC 1.

The court also considered that the minister was not required to provide an explanation, beyond the administrative convenience cited on affidavit, for allowing automatic reinstatement of the disability allowance to persons serving less than six months in prison, observing inter alia that the “assistance given to a person serving a shorter sentence does not give rise to any legal, including constitutional, entitlements for the person serving a longer sentence”.

ECHR

Refusing to quash the minister’s decision, the court turned to the cases of Belli and Arquier-Martinez v. Switzerland (App. No. 65550/13, 11 December 2018) and P.C. v. Ireland (App. No. 26922/19, 1 September 2022) relied upon by the applicant.

Observing that the European Court of Human Rights in both cases found objective bases for the applicants’ differential treatment and that no violation of Article 14 ECHR had occurred, the High Court considered the applicant’s case to be “at variance with the clear jurisprudence of the Strasbourg court”.

Conclusion

Accordingly, the High Court refused the application.

Lordan v The Minister for Social Protection & Ors [2024] IEHC 418