BURNS v. UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 17256/90

by Joseph BURNS

against the United Kingdom

        The European Commission of Human Rights sitting in private on

7 November 1990, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                MM.  L. LOUCAIDES

                     J.C. GEUS

                     A.V. ALMEIDA RIBEIRO

                     M.P. PELLONPÄÄ

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 4 June 1990

by Joseph BURNS against the United Kingdom and registered on 4 October

1990 under file No. 17256/90;

        Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

        The applicant is a citizen of the United Kingdom born in 1924

and resident in Southampton.

        The applicant complains on behalf of himself and his wife that

they are unable to receive a State pension for his wife because she is

paid an Invalid Care Allowance (ICA) to look after their 22 year old

daughter who suffers from Down's Syndrome.  The reason for this was

explained as follows by the Department of Social Security in a letter

dated 10 January 1990 to the applicant's Member of Parliament:-

        "We full recognise the valuable contribution made by carers

        who devotedly care for a severely disabled relative at home.

        However, I must confirm that a retirement pensioner cannot

        receive ICA in addition to her retirement pension.

        Retirement pension is intended to provide a sum for basic

        weekly maintenance.  It allows a person who so wishes to

        give up full time work and retire.  ICA is also an income

        maintenance benefit intended to help meet the needs of a

        person unable to undertake employment because they are

        caring for someone.  Rules preventing the duplicate payment

        of benefits intended for the same purpose have been a

        feature of our Social Security scheme since it began.

        From the scheme's inception in 1948, all flat rate National

        Insurance benefits were designed to provide income maintenance

        when a particular contingency catered for under the scheme

        arises, for example sickness, unemployment, widowhood and

        the reaching of pension age.  This also applies to benefits

        introduced since then such as ICA.  It has never been the

        intention that when a person is entitled to more than one

        benefit at the same time, the benefits should be added

        together.  Since, as I have said, each benefit fulfils the

        same purpose, paying one on top of another would mean over

        provision from public funds.  The overlapping benefit rules

        apply to all people who qualify for more than one income

        maintenance benefit at the same time, not just pensioners.

        Mr.  Burns contrasts the position of a pensioner who is now

        able to have unlimited earnings, with a pensioner who is

        unable to work because she is a carer, yet cannot also

        receive ICA.  There is a difference, however, between

        disregarding earnings which are not payable from public

        funds and allowing duplicate payment of benefit."

        The applicant does not make a claim to be a victim of a

specific violation of the Convention, but states that the State's

policy is unjust in view of the difficult task involved in caring for

his daughter and the fact that he had to contribute throughout his

working life to the State pension scheme.

        The Commission has examined the applicant's complaint but

finds that the case, as it has been submitted, does not raise an issue

under any Convention right or freedom.  In particular, it finds that

the applicant cannot make a claim under the Convention in the

circumstances of his case that he and his wife are entitled to the

accumulated payment of his wife's State pension and the ICA.

Accordingly the application must be rejected as incompatible ratione

materiae with the provisions of the Convention, pursuant to

Article 27 para. 2 of the Convention.

        For these reasons, the Commission unanimously

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                            (C.A. NØRGAARD)

 

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