O’Donnell J. proposed that a man whose contributory State pension was withheld while he was imprisoned should receive €10,000, including €7,500 already paid. The proposal appears in his judgment delivered on 28 November 2018. The supplied extract does not show the Supreme Court’s final order or the positions of the other judges on the remedy.
The appellant, identified as P.C., had challenged the non-payment of his pension under section 249(1) of the Social Welfare (Consolidation) Act 2005. The court had ruled on the substantive appeal in July 2017. It concluded that the State could not apply a benefit disqualification only to people convicted of crimes where that amounted to an additional punishment not imposed by a sentencing court. The court adjourned the question of the remedy so the parties could make submissions.
O’Donnell J. said the constitutional problem arose from the interaction between the Act and regulations that narrowed the disqualification. In practice, he said, the provision applied to people sentenced to imprisonment following conviction. P.C. had been convicted on several counts concerning serious offences against a family member and sentenced to a lengthy prison term. His anticipated release date was 2020, according to the judgment.
O’Donnell J. rejected the argument that a finding of unconstitutionality automatically entitled P.C. to damages. He distinguished damages from a claim to the unpaid statutory benefit, but said the case had not been pleaded as a claim for the benefit. Addressing that issue in his judgment, he considered that a declaration of invalidity should not automatically make all previously withheld payments recoverable.
He proposed declaring invalid the part of section 249(1)(b) that disqualified P.C. and people in the same position from benefits while serving a lawful prison sentence. He said the declaration should be tailored to the provision challenged and to the appellant’s circumstances. He also considered that the State had been entitled to administer the law on the assumption that the disqualification was valid until proceedings were brought.
On that basis, O’Donnell J. proposed limiting recovery to a period approximating the time taken by P.C.’s proceedings. He put the total at €10,000, of which €7,500 had already been paid. He said people who had not issued proceedings would not be entitled to claim, while any entitlement in cases where proceedings had been issued but not advanced would need careful consideration.
The extract ends during O’Donnell J.’s judgment. It does not establish whether these proposed orders were adopted by the Supreme Court.