Court of Appeal dismisses appeal against disability allowance denial for prisoner, citing ECtHR precedent rejecting unequal treatment of prisoners versus mental patients.

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2024/258

High Court Record Number: 2022 592 JR

Neutral Citation Number [2025] IECA 277

Meenan J. Hyland J. Collins J.

BETWEEN/

JAMIE LORDAN

APPELLANT

- AND –

MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY

GENERAL

RESPONDENTS

-AND-

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

JUDGMENT of Mr. Justice Charles Meenan delivered on the 17th day of December 2025

Introduction: -

1. These are judicial review proceedings in which the appellant is challenging the lawfulness of a decision by the first named respondent that he was not entitled to a disability allowance (the “allowance”) for which he asserts he was eligible under the provisions of the Social Welfare Consolidation Act, 2005 (the “Act of 2005”) for the period of time whilst he was in lawful custody. The appellant also challenged the lawfulness of the statutory provision of the Act of 2005 that required him to reapply for the allowance on his release from prison.

2. The basis for the challenge was that the relevant provisions of the Act of 2005 disentitling him to the allowance whilst in prison was contrary to the provisions of Articles

34 and 38 of the Constitution in that they amounted to non-judicial punishment. The appellant also maintained that the relevant statutory provisions were in breach of Article

40.1 in that they treated him unequally before the law. It was also submitted that the said statutory provisions were incompatible with certain Articles of the European Convention on Human Rights.

3. In a clear and concise judgment, the High Court (Bolger J., [2024] IEHC 418) dismissed the judicial review proceedings and refused the reliefs sought. This is an appeal against that judgment and subsequent order made on 23 July 2024 (perfected on 17 October 2024).

Background: -

4. The appellant (date of birth 31 October 1981) was diagnosed as having spastic hemiplegia due to cerebral palsy. Arising from this the appellant had reduced power down the entirety of his right side with resulting limitations of function. These limitations substantially restricted the appellant in his ability to work. As a result the appellant was in receipt of the allowance under the provisions of the Act of 2005.

5. Unfortunately, the appellant has a troubled history of drug addiction. Arising from this he has been convicted of various drug offences resulting in prison sentences. The appellant was first committed to Cork Prison on 26 November 2001 and thereafter has received numerous custodial sentences for short periods followed by periods of temporary release.

6. The appellant was convicted and detained in Cork Prison in 2018. From then his allowance was stopped following a notification by the Irish Prison Service to the first named respondent. The appellant instructed a firm of solicitors who entered into correspondence with the first respondent seeking reinstatement of the allowance. The respondent refused to reinstate the allowance on the grounds that the appellant was not entitled to such whilst in prison. The appellant sought to have this decision reviewed but, ultimately, on 5 May 2022 the following decision was given: - “A person does not meet the qualifying criteria for DA [the allowance] if their restriction in undertaking employment is not solely due to their medical condition. This is legislated for under sections 210(1)(ba) and 210(1)(bb) of the Social Welfare Consolidation Act 2005, as amended. Accordingly, as your client’s restriction in undertaking employment is not solely due to their medical condition and they are not available to take up employment, they do not satisfy the qualifying conditions for the scheme and therefore have no entitlement to DA.” Judicial review proceedings were brought in respect of this decision.

The relevant statutory provisions of the Act of 2005: -

7. Section 210 of the Act of 2005 provides for a disability allowance and the eligibility criteria that must be satisfied to obtain it. The relevant subsections are set out below: - “Entitlement to allowance 210(1) Subject to this Act, an allowance (‘disability allowance’) shall be paid to a person‒

(a) who has attained the age of 16 years but has not attained pensionable age.

(b) who is by reason of a specified disability substantially restricted in undertaking employment (in this chapter referred to as ‘suitable employment’) of a kind which, if the person was not suffering from that disability, would be suited to that person’s age, experience and qualifications, whether or not the person is availing of a service for the training of disabled persons under section 68 of the Health Act 1970,

(ba) subject to subsection (10) the reason for those whose

substantial restriction in undertaking suitable employment is as a direct result of the person concerned being incapable of work and for no other reason,

(bb) who, were it not for the substantial restriction, would be

available to work in insurable employment or insurable self-

employment, and

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(10) the person shall not be disqualified for receipt of a disability allowance while engaged in a prescribed course of education, training, or development.” (emphasis added) Section 210(1)(ba) - (bb) was inserted following the decision of the Supreme Court in PC v Minister for Social Protection [2017] IESC 63, which I consider later in this judgment.

8. The provisions of s. 249, though not the basis for the impugned decision, are of relevance: - “Absence from State or imprisonment 249(1)‒ Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part II (including any increase of benefit) for any period during which that person‒

(a) is absent from the State, or

(b) is undergoing imprisonment or detention in legal custody. (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,

---

(6) A person shall be disqualified for receipt of jobseekers allowance, preretirement allowance, supplementary welfare allowance, disability allowance or farm assist (including any increase in such allowance or assistance) 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.”

9. As the statutory basis for the impugned decision was s. 210 and not s. 249, the respondent was relying upon the appellant not being available for work for a reason other than his disability rather than because the appellant was in prison.

The Constitution: -

10. The Articles of the Constitution relevant to these proceedings are: - Article 34: - “1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

Article 38: -

“1. No person shall be tried on any criminal charge save in due course of law.”

Article 40.1: -

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

The European Convention on Human Rights (“ECHR”): -

Article 1 of Protocol No. 1: -

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14: -

“Enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” PC v Minister for Social Protection [2017] IESC 63 (“PC”)

11. In the High Court the appellant, as he did in this court, relied to a significant extent on the decision of the Supreme Court in PC.

12. The appellant in PC 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) (the “SPC”). On attaining the age of 66 years in 2006, he commenced receiving the SPC.

13. In 2001 PC 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. By reason of s. 249 of the Act of 2005 the first named respondent ceased payment of the SPC to PC from the date of his detention in prison.

14. PC challenged the constitutionality of s. 249 seeking a declaration that it was incompatible with Articles. 34, 38, 40.1, 40.3 and 43 of the Constitution together with damages for an alleged breach of his constitutional rights.

15. In delivering the judgment of the Court MacMenamin J. referred to a number of authorities that were also referred to in these proceedings. In Deaton v Attorney General and the Revenue Commissioners [1963] IR 170 a challenge was made against the Customs (Consolidation) Act, 1876 which provided that any person found guilty of an offence “should forfeit either treble the value of the goods, including a duty payable thereon of £100, at the election of the Revenue Commissioners”. MacMenamin J. stated: - “52. Deaton establishes, first, that it is for the legislature to prescribe what punishment shall attach to the commission of such offence. In that process, the legislature may identify a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties. Second, there is a distinction drawn between the prescription of a fixed penalty, and the selection of a penalty for a particular case. The prescription of a fixed penalty is a statement of a general rule which is one of the characteristics of legislation. This is wholly different from the selection of a penalty to be imposed in a particular case. In Deaton, Ó Dálaigh CJ went on to point out that, if a general rule is enunciated in the form of a fixed penalty, then all citizens convicted of the offence must bear the same punishment. However, if the rule is stated by reference to a range of penalties to be chosen, according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point, the matter has passed from the legislative domain.”

16. MacMenamin J. also referred to the judgment of the High Court in Enright v Ireland [2003] 2 IR 321 which involved a challenge to the constitutionality of the Sex Offenders Act, 2001 which required persons convicted of specified offences to notify the Garda authorities of their whereabouts. The issue in this case was whether or not the operation of this notification requirement constituted a penalty for the offence, the imposition of which would be inconsistent with the constitutional right under Article 38.1 not to have a penalty for an offence imposed which did not exist at the date of the offence. MacMenamin J. stated:

-

“56. In Enright, Finlay Geoghegan J. engaged in a detailed analysis of the provision in question there, applying criteria identified in the United States’ decision of Kennedy v Mendoza - Martinez (1963) 372 US 144. Applying these criteria, she concluded that the provision in question there did not evince an intention that the statute be considered as punitive. The court held that it had not been established that the provision in question was punitive in purpose or effect. …” Having considered these authorities and others MacMenamin J. concluded: - “59. To my mind, the prohibition on the payment of the SPC to sentenced persons can only constitute an “additional” punishment. Article 34 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on any criminal charge, save in due course of law. But this punishment is not imposed by a court at all. As such, it contravenes Articles 34 and 38 of the Constitution. Imposition of penalties, in the context of sentencing a person convicted of crimes, is a function exclusively reserved by Article 34 of the Constitution to the courts. Sentencing is an integral part of trial in due course of law, guaranteed by Article 38 of the Constitution. Provision, as applied, offends against those principles.”

and,

“62. The effect of section 249(1) is to result in an impermissible legislative incursion into the judicial function by making provision for the imposition of an extra penalty upon an individual in receipt of the SPC, without permitting the fact of this to be taken into account by a sentencing court in exercising its discretion as to the appropriate penalty to be imposed upon a person convicted of an offence that attracts a sentence of imprisonment. The manner in which the extra penalty operates fails to safeguard the appellant’s right to have justice administered in courts established by law, by judges appointed in the manner provided by the Constitution. In my view, the section as applied contravenes the principles of separation of powers, and the administration of justice, fundamental to the Constitution, and as more fully explained by the courts in Deaton.”

Judgment of the High Court: -

17. The High Court judge considered each of the grounds advanced by the appellant. In considering PC the court noted that whereas in PC the social welfare benefit concerned was denied under the provision of s. 249 of the Act of 2005 in the instant case the allowance was denied under the provisions of s. 210(1). The trial judge stated: - “12. The decision of the Supreme Court in PC does not require this court to condemn the ineligibility of a person in receipt of disability allowance during the period of incarceration in prison as an unconstitutional extra judicial punishment. Section 210(1) 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. His removal from eligibility for disability allowance was not designed as a punishment but to be endured in addition to whatever sentence was imposed on him by the court.”

and,

“30. By contrast with the automatic statutory disqualification impugned in PC, s. 210(1) operates to render a person in prison, regardless of the nature of their imprisonment and whether they are later acquitted, ineligible for payment of a disability allowance that requires an inability to work due to a disability and for no other reason…”

18. The High Court rejected the appellant’s claim under Article 40.1 of the Constitution:

-

“60. In order to ground an Article 40.1 constitutional right to equal treatment, the applicant should be able to show that they are in a relevant comparable situation to that of their chosen comparator. Whilst the applicant and his chosen comparator are both detained against their will and are both deprived of their liberty, the basis of their respective detentions are entirely different. The applicant’s chosen comparator is ‘detained for’ treatment, potentially, but not necessarily, the same condition as renders them eligible for payment of a disability allowance. The applicant is detained by an order of court as a result of the various situations that can lead to prison detention, including having been convicted of a criminal offence or having been charged with an offence, denied bail and detained on remand. 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 Art. 40.1 comparison to be made …”

19. The appellant’s complaints concerning the conditions on which the allowance would be reinstated on his release from prison was rejected. The trial judge stated: - “18. The Minister is not required to provide an explanation, beyond the administrative convenience referred to on affidavit, for allowing a person who serves a prison sentence of less than six months to be removed from what would otherwise be a requirement for them to reapply for disability allowance. 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. In any event, I am not satisfied that the Minister’s policy, of which the applicant was unaware until it was referred to in a replying affidavit after the applicant secured leave to seek judicial review on the grounds he had identified, is something that was included in that leave.”

20. The trial judge gave fairly short shrift to the appellant’s case under the EHCR observing that the appellant sought to rely on a dissenting decision in Belli and Arquier - Martinez v Switzerland (App. No. 65550/13, 11 December 2018). The trial judge concluded:

-

“23. The applicant's case in relation to the ECHR is at variance with the clear jurisprudence of the Strasbourg court and I refuse the reliefs sought.”

Notice of appeal: -

21. The notice of appeal lists some twelve grounds of appeal. These grounds are somewhat general in nature and state, repeatedly, that “the learned High Court Judge erred in law and in fact in respect of the conclusions reached by the trial judge.” The stated grounds of appeal concluded: - “12. For the avoidance of doubt, the appellant appeals against any and all adverse findings reached by the learned High Court Judge.”

Consideration of appeal: -

22. The decision of the Supreme Court in PC is central to the case the appellant seeks to make. In simple terms it is submitted that the denial of the allowance to the appellant whilst in prison constituted non-judicial punishment contrary to Articles 34 and 38 in the same way that PC was deprived of his contributory pension whilst he was in prison. The respondent submitted that the appellant’s imprisonment was an “other reason” for the purposes of s. 210(1)(ba). Sections 210(1)(ba) and (bb) were amendments to the Act of 2005 resulting from the decision in PC.

23. Like the trial judge I find the respondent’s submission compelling. Imprisonment is a punishment designed to deprive those convicted of a number of basic rights. A person in prison cannot exercise their right of freedom of movement, they are confined to living in the narrow confines of a prison. They are no longer available for work not because of a disability but rather because of a consequence of incarceration. Thus they are no longer eligible to receive the allowance.

24. The consequences of imprisonment and what it entails for a convicted person makes them no longer eligible for certain other social welfare supports. I note, for example, in a letter from the first named respondent, dated 16 December 2021, the appellant is directed to return his free travel pass immediately. No case is made that such a requirement constitutes non-judicial punishment contrary to Articles 34 and 38.

25. The situation of PC was very different. Though imprisoned, PC was still eligible for the contributory pension. The pension was not paid, not because he was no longer eligible, but because of a specific statutory provision, namely s. 249(1).

26. The trial judge was correct in holding that the denial of the allowance to the appellant was not an additional non-judicial punishment and correctly concluded that there was no breach of Articles 34 and 38.

27. The trial judge was correct not to find unlawful the provisions for the reinstatement of the allowance on the appellant’s release from prison. Indeed, such a claim was not included in the grounds on which leave to apply for judicial review was granted. It is a matter of administrative convenience to provide that the allowance is reinstated automatically where the prison sentence is less than six months and, where the prison sentence is longer, that the allowance must be reapplied for. Such arrangements are matters for the first named respondent, not the courts. In any event, the chronology attached to the respondent’s written submissions in this court stated that on 11 January 2024 the appellant was released from prison, on 26 January he made a fresh application for disability and on 31 January disability payment was made with effect from that date.

28. As stated by the trial judge, identifying a comparator is essential to maintain a claim of inequality under Article 40.1. The appellant, a person convicted and sentenced to a prison term, identified as comparators those detained under the legislative provisions referred to at s. 249. It is very difficult to see how such persons could be comparators for a number of obvious reasons. Firstly, those detained under mental health legislation are detained involuntarily for the purposes of providing appropriate treatment not punishment. Secondly, those detained under the said legislation are subject to an entirely different legal regime – i.e. regular review by Mental Health Tribunals - to assess the necessity of continued detention. Thirdly, PC was considered by the European Court of Human Rights (the “ECtHR”) in PC v. Ireland (Application no. 26922/19). In the course of submissions to that court PC argued breach of Article 14 of the ECHR and identified, as comparators, for the purposes of that Article, those detained under mental health legislation. Such comparison was rejected by the ECtHR as follows: - “85. In contrast, in the present case the additional element that permitted the comparison between different categories in SS and Others -Severe Mental Illness - is lacking. Indeed, it can be said that the difference between this applicant and the first comparator group is greater than it was in SS and Others, since in the latter case both groups have been subject to the criminal process. There was no attempt to establish a comparison with mental patients detained under civil law powers, as the applicant seeks to do here. Concentrating on the fact that persons placed in psychiatric facilities are “detainees” obscures their defining characteristic of this group. They are patients, not prisoners. Their physical liberty is restricted under civil law for the purpose of treatment; convicted prisoners are detained under criminal law mainly for a punitive purpose.”

29. The appellant sought to argue breaches of Article 1, Protocol 1 and Article 14 of the ECHR and referred to a number of decisions of the ECtHR. However, it seems to me that the decision of the ECtHR in PC is determinative. The court concluded: - “1. [The application is] admissible as regards the complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol no. 1, and the remainder of the application inadmissible;

2. That there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol no. 1.”

30. As the appellant candidly stated in his written submission: - “ECtHR in PC v Ireland (application number 26922/19) the court rejected the applicant’s comparators and found against him. This judgment may present significant hurdles for the appellant.”

31. By reason of the foregoing I dismiss the appeal. As for costs the provisional view of the court is that as the respondents have been “entirely successful” in opposing the appeal they are entitled to their legal costs. Should the appellant wish to dispute this [he] may do so by way of written submissions (no longer than 1,500 words) to be delivered within 14 days of the date of the delivery of this judgment. The respondents should they wish, may respond also by way of written submissions (no greater than 1,500 words) within 14 days thereafter.

32. As this judgment is being delivered electronically, I am authorised to record the agreement of Hyland and Collins JJ. with it.