FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application nos. 65202/01, 73653/01, 27959/02, 28023/02, 28062/02, 28074/02, 28078/02, 42699/02, 4810/02, 23244/03, 23816/03 and 345/04
by David DIXON and OTHERS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 30 May 2006 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrM. Pellonpää,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above applications lodged on the dates set out below,
Having regard to the partial decisions of 10 September 2002 (65202/01, 73653/01, 4810/02), 12 November 2002 (28023/02, 28062/02, 28074/02, 28078/02), 8 April 2003 (42699/02), 23 September 2003 (23816/03) and 4 November 2003 (23244/03) and the decisions to join cases of 10 September 2002 (65202/01, 73653/01, 4810/02) , 17 November 2005 (27959/02) and 22 August 2005 (345/04),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
A.The circumstances of the case
1.David Dixon, no. 65202/01, lodged on 7 December 2000
The applicant is a British national who was born on 21 January 1949 and who lives in Liverpool. He is represented before the Court by Mr B. White, Warrington Community Law Centre. The United Kingdom Government (“the Government”) are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office.
The applicant was widowed on 12 April 1992. There were three children of the marriage, born on 10 February 1975, 14 March 1977 and 11 April 1980.
On 31 May 2000 the applicant applied for widows’ benefits. He was finally refused by the Appeal Tribunal on 6 July 2000.
2.Ronald Ferguson, no. 73653/01, lodged on 13 August 2001
The applicant is a British national who was born on 28 December 1945 and who lives in Leeds. He is represented before the Court by Ms J. Starling, T.V. Edwards solicitors, London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 27 June 1984. There was one child of the marriage, born on 1 July 1981.
On 1 February 2001 the applicant made an application for survivors’ benefits. He was informed by a letter dated 13 February 2001 that his claim had been refused.
3.William Derbyshire, no. 4810/02, lodged on 3 October 2001
The applicant is a British national who was born on 19 November 1944 and who lives in Wigan. He is not represented before the Court. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 12 November 1988. There was one child of the marriage, born on 7 December 1972.
On 9 May 2001 the applicant claimed widows’ benefits. His claim was disallowed on 25 May 2001. The applicant appealed and his appeal was refused on 27 September 2001.
4.Colin Blackwell, no. 27959/02, lodged on 1 March 2001
The applicant is a British national who was born on 19 April 1949 and who lives in Colchester. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 28 August 1992. There were two children of the marriage, born on 20 January 1979 and 12 May 1980.
Shortly after his wife’s death, Mr Blackwell made a telephone enquiry to the Benefits Agency about survivors’ benefits, but was informed that such benefits were not available for men. On 13 October 2000 he made a formal application for survivors’ benefits. He was informed on 31 October 2000 that his claim had been refused.
5.Bernard Kelly, no. 28023/02, lodged on 24 October 2001
The applicant is a British national who was born on 1 November 1953 and who lives in Stockport. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 30 September 1992. In May 2001 he claimed Bereavement Benefits from his local Benefits Agency. He was informed by a decision dated 25 May 2001 that there was no entitlement to Widowed Parents Allowance because he was no longer in receipt of child benefit, and by a decision dated 6 June 2001 that his claim for Bereavement Payment had been refused because his spouse had died before 9 April 2001, the date of the introduction of Bereavement Benefit.
6.Stephen Rees-Jones, no. 28062/02, lodged on 18 May 2001
The applicant is a British national who was born on 30 June 1944 and who lives in Bampton. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 18 November 1983. There were two children of the marriage, born on 14 October 1971 and 14 December 1977.
After his wife’s death, the applicant enquired about survivors’ benefits, and he was informed on 23 August 2000 that he was not entitled because he was a man. The applicant appealed and his appeal was finally refused on 25 January 2001.
7.John Slack, no. 28074/02, lodged on 29 May 2001
The applicant is a British national who was born on 30 March 1944 and who lives in Blackburn. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 22 September 1983. There were two children of the marriage, born on 30 January 1965 and 1 February 1968.
After his wife’s death, the applicant enquired about survivors’ benefits, and he was informed that he was not entitled because he was a man. He made a formal application on 5 December 2000 which was refused on 8 December 2000.
8.Jerome Smith, no. 28078/02, lodged on 13 September 2001
The applicant is a British national who was born on 8 February 1950 and who lives in Loughton. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 3 October 1994. He made an application for survivors’ benefits on 6 July 2001, which was refused on 27 July 2001. At the time of his application to the Benefits Agency he was not in receipt of child benefit.
9.William O’Brien, no. 42699/02, lodged on 18 March 2002
The applicant is a British national who was born on 30 August 1941 and who lives in London. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 29 September 1985. He made an application for survivors’ benefits on 15 February 2002, which was refused on 20 February 2002. At the time of his application to the Benefits Agency he was not in receipt of child benefit.
10. Neil Ingram, no. 23244/03, lodged on 15 July 2003
The applicant is a British national who was born on 8 February 1945 and who lives in Ayrshire. He is not represented before the Court. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 26 August 1980. His youngest child was born on the same day.
Two weeks after his wife’s death the applicant claimed widows’ benefits and was refused. He made a second, formal application on 30 September 2002 which was finally refused on 26 June 2003.
11. Richard Ebdon, no. 23816/03, lodged on 22 July 2003
The applicant is a British national who was born on 28 June 1940 and who lives in Bristol. He is represented before the Court by Mr N. Arnott, Avon and Bristol Law Centre. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 8 September 1974. There were two children of the family, born on 14 July 1970 and 23 October 1971.
A year after his wife’s death, and again in January 1976, the applicant enquired about survivors’ benefits and was told that such benefits were not available to men. He made a formal application on 5 March 2002 which was finally refused on 23 March 2003.
12. Shaun Caniff, no. 345/04, lodged on 15 December 2003
The applicant is a British national who was born on 28 November 1960 and who lives in Tredegar. He is represented before the Court by Mr W. Palmer, Speakeasy Advice Centre, Cardiff. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 14 March 1996. There were two children of the family, born on 28 October 1984 and 3 March 1987.
Shortly after his wife’s death the applicant enquired about survivors’ benefits and was told that such benefits were not available to men. He made a formal application on 30 May 2002 which was finally refused on 9 July 2003.
B. Relevant domestic law
The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.
COMPLAINTS
The applicants complain under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 that, because they were men, they were not entitled to the equivalent of widow’s benefits.
THE LAW
A.The parties’ submissions
The Government submit that the six month time-limit under Article 35 of the Convention started to run in each case from the date of the final refusal of survivors’ benefits by the domestic authorities. At the time of each applicant’s claim which was admissible under the six months rule, a woman in his position would not have been entitled to widow’s benefits.
The applicants argue either that they did not make a claim to the Benefits Agency within the time-limits as they applied to women because no benefit was in existence for men at the time of their wife’s death, or, if they did make claims shortly after their wife’s death, that the six months time-limit should not apply to what is in effect a continuing instance of discrimination arising out of legislation.
B.The Court’s assessment
The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Cornwell v. the United Kingdom, (dec.) no. 36578/97, decision of 11 May 1999).
Under the legislation providing for widow’s benefits at the relevant time (see Willis cited above), a widow was not automatically entitled to survivors’ benefits, but had to claim them from the relevant authority. Various time-limits applied: a widow had to make a claim for Widow’s Payment within three months of her husband’s death and a claim for Widowed Mother’s Allowance or Widow’s Pension could be made outside that time-limit, but would be back-dated only three months. To be eligible for Widowed Mother’s Allowance, a woman had to be unmarried and either pregnant by her late husband or entitled to child benefit in respect of a child of the marriage. To be eligible for a Widow’s Pension, a woman had to be aged between 45 and 65 at the date of her husband’s death and to have ceased to be eligible for a Widowed Mother’s Allowance. The widow was not entitled to the pension for any period after she remarried, but, subject to that, continued to be entitled until she attained the age of 65. In order for any entitlement to arise, the widow’s deceased husband had to have made sufficient national insurance contributions.
The Court considers, as it held in Cornwell, that unless and until a man has made a claim to the domestic authorities for bereavement benefits, he cannot be regarded as a “victim” of the alleged discrimination involved in the refusal to pay such benefits, because a woman in the same position would not automatically be entitled to widow’s benefits until having made a claim (but see also White v. the United Kingdom, (dec.) no. 53134/99, decision of 7 June 2001, where the Court clarified that, as long as an applicant had made clear to the authorities his intention to claim benefits, the precise form in which he did so was not important). Similarly, a man who failed to apply within the time-limits as they applied to women could not, in most cases, claim to be a victim of discrimination, since a woman in the same position would not have been entitled to the benefit in question (see Rogan v. the United Kingdom, no. 57946/00, decision of 8 September 2001).
Insofar as the applicants complain that they are victims of a continuing violation to which the six months rule is inapplicable, the Court recalls that the concept of a “continuing situation” refers to a state of affairs which involves continuous activities by or on the part of the State to render the applicants victims (see, for example, Skowronski v. Poland, (dec.) no. 37609/97, decision of 19 March 2002). There is no such “continuing situation” here, since a widower cannot claim to be a victim of discrimination until he has applied for benefits and been refused. It has, therefore, been the Court’s consistent practice in such cases to hold that the six months time-limit in Article 35 § 1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits (see, for example, Barrow and Others v. the United Kingdom, (dec.) nos. 68175/01, 68928/01, 69327/01, 13944/02, 13 December 2005).
Turning to the facts of the present applications, the Court observes that each applicant was too young at the date of his wife’s death to be eligible for a Widow’s Pension. By the time of any claim for benefits admissible under the six months rule, none of the applicants was in receipt of child benefits and each had missed the time-limit for a Widow’s Payment. Women in the applicants’ position would not have been entitled to widow’s benefits, and the applicants cannot, therefore, claim to be victims of discriminatory treatment.
The applicants cannot, therefore, claim to be victims of discrimination contrary to the Convention, and these applications are inadmissible under Article 34 of the Convention.
For these reasons, the Court unanimously
Decides to disjoin applications nos. 65202/01, 73653/01, 4810/02, 27959/02 and 345/04 from the applications to which they were joined; and
Declares the applications inadmissible.
T.L. EarlyJosep Casadevall Registrar President
Full & Egal Universal Law Academy