THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36940/97
by David William FIELDING
against the United Kingdom
The European Court of Human Rights (Third Section) sitting on 8 June 1999 as a Chamber composed of
MrJ-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrsH.S. Greve,
MrK. Traja, Judges,
withMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 June 1997 by David William FIELDING a gainst the United Kingdom and registered on 18 July 1997 under file no. 36940/97;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the respondent Government’s letter of 29 May 1998 waiving the admissibility of the application;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1945 and resident in Cheshire. He is represented before the Court by Mr P. Leach of Liberty. The facts of the application, as submitted by the parties, may be summarised as follows.
A.Particular circumstances of the case
The applicant and his wife were married in 1973 and had three children, born in 1974, 1976 and 1988. The applicant’s wife died in 1996.
The applicant’s wife worked throughout the marriage, only taking breaks in order to have the three children, and paid full social security contributions as an employed earner. The applicant continues in full-time work, earning GBP 29,500 per annum, from which he has to pay the mortgage and support himself and the children, the two eldest of whom are currently at University and the youngest of whom lives with her father and is partly cared for by a child-minder.
In January 1997 the applicant applied by telephone to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows’ benefits were specific to women. An appeal against such a decision would be bound to fail given that no social security benefits are payable to widowers under United Kingdom law.
The applicant also contacted the Inland Revenue and applied by telephone for bereavement tax allowance. He was informed that he did not qualify for the tax allowance, since he is a man and the law provides only for payments to widows.
The applicant receives Child Benefit at the Lone Parent rate in respect of his youngest child at GBP 17.20 per week. His income precludes him from qualifying for means-tested benefits such as Income Support or Family Credit. A widow in a similar situation could claim Widow’s Payment and Widowed Mother’s Allowance, which are payable regardless of income and savings.
B.Relevant domestic law and practice
Under United Kingdom law, certain social security benefits, including Widow’s Payment, Widowed Mother’s Allowance, and Widow’s Pension, are paid for out of the National Insurance Fund. By Section 1 of the 1992 Act, the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament.
Male and female earners are obliged to pay the same social security contributions in accordance with their status as employed earners or self-employed earners.
1.Widow’s Payment
Under Section 36 of the 1992 Act, a woman who has been widowed is entitled to a widow’s payment (currently a lump sum payment of GBP 1,000) if:
(i) she is under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension;
(ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act.
2.Widowed Mother’s Allowance
Under Section 37 of the 1992 Act, in so far as relevant, a woman who has been widowed (and who has not remarried) is entitled to a mother’s allowance on certain conditions, the following being the relevant conditions to the circumstance of the present case:
(i) her husband satisfied the contribution conditions set out in a Schedule to the Act; and
(ii) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband.
The Widowed Mother’s Allowance currently amounts to GBP 62.45 per week, with an extra GBP 9.90 per week in respect of the eldest eligible child, and a further GBP 11.20 per week in respect of other children.
3.Widow’s Pension
Under Section 38 of the 1992 Act, a woman who has been widowed (and who is not remarried) is entitled to a widow’s pension if:
(i) her husband satisfied the contribution conditions set out in a Schedule to the Act; and
(ii) at the date of her husband’s death she was over the age of 45 but under the age of 65; or
(iii) she ceased to be entitled to a widowed mother’s allowance at the time when she was over the age of 45 but under the age of 65.
If the applicant were a woman, he could look forward to entitlement to a Widow’s Pension in the future, when he would no longer be entitled to the Widowed Mother’s Allowance.
4.Bereavement Tax Allowance
Section 262(1) of the Income and Corporation Taxes Act 1988 provides:
“Where a married man whose wife is living with him dies, his widow shall be entitled –
(a)for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year, and
(b)(unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year.”
The amount specified for the tax year 1997/7 was GBP 1,790.
COMPLAINTS
The applicant complains that British social security and tax legislation discriminates against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.
PROCEDURE
The application was introduced on 17 June 1997 and registered on 18 July 1997.
On 15 January 1998, the Commission decided to communicate the application to the respondent Government.
By a letter dated 29 May 1998 the Government indicated that they did not intend to contest the admissibility of the application and accordingly would not submit any observations on admissibility. They did, however, reserve the right to submit observations before the merits were examined.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains that the lack of provision for widowers’ benefits under British social security legislation discriminates against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.
Article 14 states:
“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.”
Article 8 provides (as relevant):
“1. Everyone has the right to respect for his private and family life ... .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ... .”
Article 1 of Protocol No. 1 states:
“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 the general principles of international law.
2. 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 Court observes that the Government do not contest the admissibility of the application and have submitted no observations in this connection.
The Court considers that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S. DolléJ-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy