FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28021/02
by Edward KAVANAGH
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 24 June 2008 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 15 January 2002,
Having regard to the partial decision of 12 November 2002,
Having regard to the formal declarations accepting a friendly settlement of part of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Edward Kavanagh, is a British national who was born in 1945 and lives in Cumbria. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 13 September 2000. His claim for widows’ benefits was made on 26 March 2001 and was rejected on 31 May 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed and on 30 July 2001 reconsideration took place, whereby the previous decision was upheld. This was confirmed by an appeal tribunal on 16 November 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
B. Relevant domestic law
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007.
COMPLAINTS
The applicant complained that British social security legislation discriminated 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.
THE LAW
By a letter of 11 May 2005 the respondent Government informed the Court that the House of Lords had decided, in relation to the claims for Widowed Mother’s Allowance (WMA) and Widow’s Payment (WPt), that there was in principle no objective justification at the relevant time for not paying these benefits to widowers as well as widows, but that the Government had a defence under section 6 of the Human Rights Act 1998 (the HRA). It noted that, in view of this, the multitude of cases before the Court and the fact that the HRA defence was only applicable in the domestic arena, the Government were prepared, in principle, to settle all claims made by widowers against the United Kingdom arising out of the arrangements applicable prior to April 2001 for the payment of WMA and WPt.
By a letter of 8 November 2007 the applicant’s representatives notified the Court that Mr Kavanagh had been offered GBP 2,181.41 in respect of his claims for WPt and/or WMA including costs, and that he had accepted payment. On 27 May 2008 the applicant’s representatives informed the Court that the applicant had received the monies due. On 9 June 2008 the applicant’s representatives were sent a letter by the Registry stating that the Court would consider striking the case out of its list in respect of the claims that had been settled.
The Court takes note of the friendly settlement reached between the parties in respect of WPt and/or WMA. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
Accordingly, this part of the application should be struck out of the list.
Regarding the claim for Widow’s Pension (“WP”) the Court held in its lead judgment regarding WP that at its origin, and until its abolition in respect of women whose spouses died after 9 April 2001, WP was intended to correct “factual inequalities” between older widows, as a group, and the rest of the population and that this difference in treatment was reasonably and objectively justified. Moreover, the Court considered that the United Kingdom could not be criticised for not having abolished WP earlier and that it was not unreasonable of the legislature to decide to introduce the reform slowly (see Runkee and White, cited above, §§ 40-41). The Court, consequently, considering it was not necessary to examine separately the complaint in respect of Article 8, did not find a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in respect of the non-payment to the applicants of WP or equivalent (ibid § 42).
Consequently, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In conclusion, therefore, the Court strikes out of its list the applicant’s complaints as regards Widow’s Payment and/or Widowed Mother’s Allowance and declares inadmissible the applicant’s complaint as regards Widow’s Pension.
For these reasons, the Court unanimously
Decides to strike out of its list of cases the applicant’s complaints about non-entitlement to a Widow’s Payment and/or Widowed Mother’s Allowance;
Declares inadmissible the remainder of the application.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy