On Tuesday 9 July, the High Court found that it was not unconstitutional for a man’s disability allowance to have been suspended while he was in prison, nor was it discriminatory in nature, and the requirement to reapply for the allowance upon release was not unlawful, as it allowed for reassessing eligibility given the passage of time. The case involved a man who received the disability allowance, as he satisfied the requirements of having a permanent disability and passing the means test, but he had his allowance stopped throughout his stints in prison. The Minister refused to review their decision to stop the disability allowance while in prison, as the applicant no longer met the qualifying criteria under s210 of the Social Welfare Consolidation Act 2005 (the ‘2005 Act’). Also at issue for the applicant was the fact that those who are on disability allowance and spend less than 6 months in prison will be automatically put back on their allowance, but if a person spends more than 6 months in prison, they must reapply and be reassessed for the allowance.
In bringing forward the application to the courts, the applicant pursued judicial review proceedings for certiorari of the Minister’s decision, seeking a declaration of unconstitutionality of the 2005 Act (citing Articles 34 and 38 of the Constitution). The applicant also claimed that he was treated unequally as per Article 40.1 of the Constitution, and further sought to have s210(1) declared as discriminatory as per section 5 of the European Convention on Human Rights (the ‘Convention’). Finally, the applicant wished for the court to state that his allowance should also be automatically reinstated upon release from prison.
In her judgment, Ms Justice Bolger referenced both section 210 and section 249 of the 2005 Act, as the latter automatically disqualifies those who are in prison from receiving the disability allowance. The judge surmised that the allowance is for those who cannot work due to disability rather than those who cannot work due to incarceration and that losing the benefit was a sacrifice of lawful detention in prison. The judge considered that,
“It does not morph into an unconstitutional extra-judicial punishment simply because a disabled prisoner can no longer satisfy the s.210(1) criteria while they are in prison, as their ineligibility to receive the allowance is not because of their disability but because they are in prison.”
For the discrimination claim per Article 40.1 of the Constitution, the applicant compared their situation as a person being detained in prison and having their allowance suspended to an individual detained for treatment (these individuals would still receive their allowance). In her decision, Ms Justice Bolger felt that the chosen comparator was very different, and as such, the distinction in treatment “is not capricious, irrational or perverse.” In addition, the judge dismissed the contention that section 5 of the Convention was breached, saying that the case of the applicant is at evident variance with the jurisprudence of the ECHR.
On the administrative rule that allows those under 6 months but not over 6 months in prison to automatically be put back on the disability allowance, the judge did not consider this an issue. The judge did not find fault with the fact that the minister did not expand very much on the reasons for this rule. It was seen as appropriate that given the potential change in circumstances over the time elapsed in prison, a new assessment was needed. Looking quite critically at this element of the case, the judge commented, “The basis for this aspect of the applicant’s challenge is unclear both in terms of the evidence and the law.”
As a result, all aspects of the application were unsuccessful and the court refused to make any declarations of unconstitutionality.
Click here to read the case.