Rapist (75) loses High Court bid to be paid State pension

A convicted rapist has lost his High Court challenge to the constitutionality of a law which prevents prisoners who are more than 65 years old receiving the State pension while they are serving custodial sentences.

The man, who cannot be identified for legal reasons, is serving a 12-year sentence after being convicted by a jury at the Central Criminal Court of multiple charges of raping and sexually assaulting his daughter.

Following the 75-year-old’s conviction, he was disqualified from receiving the State pension payment of €230 per week.

He claimed this amounted to an extra judicial punishment imposed by the State which it is not entitled to impose.

It was estimated he would lose out on more than €95,000 in pension payments because of the disqualification order.

In a detailed judgment, Mr Justice Donald Binchy dismissed the man's action.

The judge ruled the man had no right under the Constitution to receive the pension while in prison.

He also rejected claims the man’s rights under the European Convention of Human Rights were breached arising out of the disqualification order.

The action was against the Minister for Social Protection, the State and the Attorney General while the Irish Human Rights and Equality Commission was a notice party.

With full remission, the man is due for release in some three years and will get pension payments on his release.

He asked the court to declare that Section 249.1 of the 2005 Social Welfare Consolidation Act, which “disqualifies” prisoners of pensionable age from receiving the State Pension (contributory) or old age pension, breaches the Constitution and ECHR.

He also sought to be paid the pension and damages.

His claims were denied.

In his judgment, Mr Binchy said the man worked at various jobs all his life and had made enough social insurance contributions to entitle him to the the full amount of State pension.

The man does not have a constitutionally protected right to receive payment of the pension simply because he has made the required number of PRSI contributions during his working life, the judge said.

The right to receive this payment was a “statutory right only” and was “subject to conditions of eligibility laid down by the Oireachtas”, he held.

Section 249.1 does no more than “suspend payment of the benefit in certain circumstances,” including when a person is being imprisoned at the cost of the State, he said. Since the pension is to assist the individual it was “perfectly rational” the benefit should not be paid when the person is being maintained by the State.

‘Lump sum’

If the benefit was paid during time in prison, the prisoner could “accumulate a lump sum” which they would not have got had they not been incarcerated.

The judge also ruled the disputed provision was not punitive in intent and did not breach the man’s right to equal treatment under the Constitution or ECHR.

The man says he is unable to do any prison work on health grounds, is destitute there and only gets a weekly prison gratuity of €11.90.

While the man is subject to hardship, his complaints were not of a sufficiently serious nature to establish a violation of his right to personal autonomy, the judge held.