AS TO THE ADMISSIBILITY OF
Application No. 27537/95
by George CARLIN
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 August 1994 by
George CARLIN against the United Kingdom and registered on 7 June 1995
under file No. 27537/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1958. He is currently
imprisoned in HM Prison Glenochil in Scotland. He is represented by
Levy and McRae, Solicitors practising in Glasgow.
A. The particular facts of the case
On 19 June 1978 the applicant injured his right hand while
working for the Clyde Binding Company. His right hand was crushed and
tendons damaged, requiring two operations. The applicant's injury was
assessed as 20% for life and he was awarded Industrial Injuries
Invalidity benefit (IIDB), an index-linked benefit set by law, by the
Department of Social Security ("DSS"). In February 1993 the applicant
was receiving £18.73 per week in Industrial Injuries Disablement
benefit.
On 19 February 1993 the applicant was arrested. On 16 June 1993
he was informed that his disablement pension had been suspended and
that the suspension was to take effect from 23 February 1993, the day
following his remand in custody. On 3 September 1993 the applicant was
sentenced to life imprisonment.
On 19 June 1994 the applicant wrote to the DSS contesting the
suspension of his Industrial Injuries Disablement benefit. His
complaints were referred to the Policy Branch in London and in turn to
the General Adjudication Service in Leeds. By letter dated
16 August 1994 the DSS, referring to the ruling of the Adjudication
Officer, confirmed that the suspension of payment of Industrial
Injuries Disablement benefit to the applicant was correct and that
there could be no exception to that suspension. Further, the letter
stated that on the applicant's release the adjudication officer would
decide the amount due to the applicant, based on the most favourable
year of his imprisonment. On 12 December 1994 the applicant completed
a Scottish Prison Service Form (No. 258), requesting an appeal from the
decision of the Adjudication Officer referred to above. By letter dated
16 January 1995 the applicant was informed by the DSS that no right of
appeal existed from the suspension of the benefit since it was imposed
by the Secretary of State.
B. Relevant domestic law and practice
The Industrial Injuries Scheme provides benefits for disablement
caused by accidents at work. The Scheme only covers disablement
suffered at work at a time when a person is an employed earner as
defined for National Insurance purposes. The armed forces and the self-
employed are excluded from the Scheme. No conditions as to payment of
National Insurance or other contributions are placed upon eligibility
to receive benefits under the Scheme. Industrial injuries benefits are
generally payable in addition to incapacity and disability benefits,
and are taken into account as income in calculating entitlement to
income related benefits. They are tax-free and are paid regardless of
whether the recipient is working at the time of payment and regardless
of the recipient's earnings, if any.
The main benefit under the Scheme, is Industrial Injuries
Disablement Benefit ("IIDB") which is paid weekly after 90 days from
the date of the industrial accident. The rate depends upon the degree
of disablement, which is defined in terms of the loss of function
arising from the injury rather than the nature of the injury sustained.
The same level of IIDB is awarded to all individuals with the same
level of injury and thus bears no relation to income or contributions
to the social insurance system.
Between 1946 and 1975 benefits under the Scheme were paid from
a self-standing Industrial Injuries Fund, itself funded (as to five
sixths) by flat-rate contributions from employers and employees and (as
to one sixth) by contributions from general taxation. In 1975 the
Industrial Injuries Fund was abolished, and between 1975 and 1990,
benefits under the Scheme were paid out of the National Insurance Fund,
which is controlled and managed by the Secretary of State for Social
Security. Since 1990, they have been paid from the Consolidated Fund,
entirely out of general taxation.
Section 113(1)(b) (formerly section 82(5)(b) of the Social
Security Act 1975) of the Social Security Contributions and Benefits
Act 1992 provides (subject to exceptions provided for in regulations)
that persons should be disqualified from receiving most contributory
and non-contributory social security benefits, including industrial
injuries benefits for the period during which that person is undergoing
imprisonment.
IIDB is excluded from the operation of that provision by virtue
of regulation 2(6) of the Social Security (General Benefit) Regulations
SI 1982/1408 ("the Regulations") which provides that section 113(1)(b)
shall not operate to disqualify a person from receiving IIDB, for any
period during which he is undergoing imprisonment.
However, under regulation 3(1) of the Regulations, payment of
IIDB to a person undergoing imprisonment or detention in legal custody
shall be suspended while that person is in detention. Regulation 2(7)
to which Regulation 2(6) is subject, provides that on release, a
maximum of one year's retrospective disablement pension can be claimed.
COMPLAINTS
The applicant complains that his right to IIDB has been suspended
whilst in prison. He claims that IIDB amounts to a contributory
benefit for which his employer paid national insurance contributions
and in which he has a patrimonial interest. He complains that this is
imposed on prisoners who are disabled in a discriminatory manner. The
applicant has not invoked any specific Article of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 August 1994 and registered
on 7 June 1995.
On 15 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
30 April 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 30 June 1997.
On 28 May 1997 the Commission granted the applicant legal aid.
THE LAW
1. The applicant complains about the suspension of payment of
Industrial Injuries Disablement Benefit (IIDB) during his imprisonment.
The Commission has examined this complaint under Article 1 of Protocol
No. 1 (P1-1) to the Convention which provides:
"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 the 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".
The Government submit that entitlement to a state benefit such
as IIDB does not constitute a "possession" for the purposes of
Article 1 of Protocol No. 1 (P1-1) of the Convention. The Government
rely on a number of factors, in particular the non-contributory nature
of the scheme, namely, that payment of contributions to the National
Insurance Fund is not a precondition for the payment of the IIDB and
therefore entitlement to this social benefit is not linked to any such
payment. They further submit that since 1990 the IIDB has been financed
from general tax revenues received in the year in which payments are
made and not from a fund in which identifiable and claimable interests
can be found. Even prior to 1990, the benefit was paid out of the
National Insurance Fund, the income of which was received, in a very
significant part, from contributions made by employers rather than
contributions made by the employees. The Government also state that
the entitlement to IIDB forms part of a general insurance scheme based
on the principle of social solidarity. Under domestic law the IIDB does
not constitute a possession and cannot, for example, be the subject of
a charge or be assigned.
Finally the Government submit that even assuming the entitlement
to the IIDB constitutes a "possession" under Article 1 of Protocol
No. 1 (P1-1), the suspension of payment amounts to a control of
property that strikes a fair balance between the general interest of
the community and the requirements of the protection of the
individual's fundamental rights. The Government argue that as long as
the prisoner is maintained at public expense there is no need for him
to receive the benefit in question.
The applicant argues that the intention of the Scheme was to
create a "possession" as defined in Article 1 of Protocol No. 1 (P1-1)
albeit a potential "possession" which would become actual in the event
of an accident being suffered by one of the contributors, such as the
applicant. He submits that the word "entitlement" referred to in the
Social Security Contributions and Benefits Act 1992, carries with it
the inference of "possession" in terms of Article 1 (Art. 1).
The applicant further disputes the relevance of the Government's
referring to social solidarity. He submits that contribution to any
insurance scheme normally conveys a patrimonial interest or
"possession" and that he had made contributions by way of National
Insurance contributions deducted from his salary.
Finally, the applicant disputes that any legitimate aim is served
by suspending payments of disablement benefits to persons in prison,
pointing out that the entitlement accrues in respect of an injury which
he continues to suffer. He argues that there is, and can be, no
requirement that the benefit is used for support and the fact that he
is living in prison is not a justification for not paying it. Accruing
payments over the period of detention would in addition serve the
beneficial purpose of aiding a successful rehabilitation in the
community on his release.
The Commission recalls that it has considered the status of
disability benefits in relation to Article 1 of Protocol No. 1
(P1-1) in a number of previous cases. In De Kleine Staarman v. the
Netherlands (No. 10503/83 Dec. 16.5.85, D.R. 42, p. 166) which
concerned the withdrawal of disability benefit from a woman upon
marriage, it held that the right to disability benefit did not
constitute a property right which could be described as "possessions"
within the meaning of Article 1 of Protocol No. 1 (P1-1) because the
relevant social security legislation, ie. General Labour Disability
Act, was set up as a general insurance based on the principle of social
solidarity and as there was no direct link between the level of
contributions and the benefits awarded, a person did not have, at any
given moment, an identifiable and claimable share in the fund. However,
where the body responsible for paying unemployment benefit was partly
financed by the National Social Security Office to which an applicant
paid contributions as a worker, the question as to whether the
unemployment benefit could be considered "possessions" within the
meaning of Article 1 of Protocol No. 1 (P1-1) was left open (Claes v.
Belgium, No. 11285/84 Dec. 7.12.87, D.R. 54, p. 94).
More recently, the Commission observes that in the case of
Gaygusuz v. Austria (Eur. Court HR, judgment of 16 September 1996,
Reports 1996-IV, No. 14, paras. 39-41), which concerned the right to
emergency assistance for an unemployed person, the Court noted that
emergency assistance was linked to and dependent upon a payment of
contributions and held that in these circumstances the right to
emergency assistance was a pecuniary right for the purposes of Article
1 of Protocol No. 1 (P1-1).
The Commission notes that while the disablement benefit awarded
to the applicant in this case is not a benefit for which the applicant
made direct contributions, IIDB is in fact payable only to qualifying
workers who are subject to the national insurance regime. There is
therefore a link between entitlement to the benefit and the applicant's
status as an employee paying into the national insurance system.
However, the Commission finds it unnecessary to decide whether this
indirect connection between contributions and benefit is sufficient to
give an entitlement to IIDB the character of "possessions" within the
meaning of Article 1 of Protocol No. 1 (P1-1). Even assuming that it
did, it is still necessary, in order for such a right to be
established, that the person concerned should have satisfied domestic
legal requirements governing the right to IIDB (No. 11285/84 op. cit.).
The Commission recalls that pursuant to Regulation 3(1) of the
Social Security (General Benefit) Regulations SI 1982/1408 the
entitlement to IIDB is subject to suspension of payment when the
recipient is in prison. This condition was in force when the applicant
was taken into custody.
The Commission therefore finds that the suspension of the
applicant's entitlement in conformity with applicable regulations does
not constitute an interference with possessions within the meaning of
Article 1 of Protocol No. 1 (P1-1) of the Convention.
It follows that this aspect of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The Commission has also examined the applicant's complaints under
Article 14 (Art. 14) of the Convention, which provides:
"The 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."
The case-law of the Convention organs establishes that it is not
every difference in treatment which constitutes discrimination within
the meaning of Article 14 (Art. 14) of the Convention. It must be
established that other persons in an analogous or relevantly similar
situation enjoy preferential treatment (see eg. Eur. Court HR Van der
Mussele judgment of 21 November 1982, Series A no. 70, Fredin v. Sweden
(No. 1) judgment of 18 February 1991 Series A no. 192, p. 19 para. 60).
The Commission recalls that the applicant complains of
discrimination as a prisoner. However, it finds that the comparison of
prisoners with non-prisoners as regards conditions applicable to
receipt of State welfare benefits is a comparison of two different
factual situations and as such discloses no discrimination under
Article 14 (Art. 14) (see mutatis mutandis Nos. 27004/95 and 27011/95
Szrajber and Clarke v. UK decs. 23.10.97 unpublished, concerning
entitlements to contributory state-run pension schemes which are
suspended during prison sentences).
It follows that this aspect of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy