AS TO THE ADMISSIBILITY OF
Application No. 34190/96
by Sarah NAHON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, 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 11 December 1996
by Sarah NAHON against the United Kingdom and registered on 16 December
1996 under file No. 34190/96;
Having regard to the report 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 1936. She is
represented before the Commission by Mr. Neville Maryan Green,
barrister, Paris.
A. Particular circumstances of the case
The applicant was employed by Lloyds Bank Plc ("the Bank") from
4 February 1970 until 30 June 1994, when she was made redundant.
Throughout this period she was paying part of her salary into an
occupational pension scheme. She was also paying national insurance
contributions, which are compulsory and provide amongst other things
for unemployment benefit if the person becomes unemployed.
Since 24 July 1994 the applicant has been receiving an
occupational pension from the Bank of £491.00 a month.
The applicant applied for unemployment benefit for the period of
24 August 1994 to 27 September 1994. The application was refused by the
Adjudicating Officer. The applicant appealed to the Social Security
Tribunal where her lawyers accepted that the domestic law had been
properly applied, but relied on the alleged violation of her rights
under Article 1 of Protocol No. 1 to the European Convention on Human
Rights. The Tribunal dismissed the appeal on 23 April 1996. The
applicant received the decision on 12 June 1996.
B. Relevant domestic law
Section 30 of the Social Security Contributions and Benefits Act
1992, insofar as relevant, provides:
"(1) If payments by way of an occupational or personal pension
which in the aggregate exceed the maximum sum are made for any week to
a person who has attained the age of 55, the rate of any unemployment
benefit to which apart from this section he is entitled for that week
shall be reduced by 10 pence for each 10 pence of the excess; and in
this subsection "the maximum sum" means such sum not less than £35.00
as is prescribed.
(3) Regulations may provide-
(c) for this section to apply, in cases where-
(i) a lump sum is paid to a person in connection with
a former employment of his or arrangements are made
for a lump sum to be so paid; or
(ii) benefits of any description are made available to
a person in connection with a former employment of his
or arrangements for them to be made so available;
as if there were made to a person such weekly payments by way of
occupational or personal pension as are specified in or determined
under the regulations ..."
COMPLAINTS
The applicant invokes Article 1 of Protocol No. 1, claiming that
she has been deprived of her "possessions" by being deprived of the
unemployment benefit for which she had contributed for 25 years.
According to the applicant, her expectation to a right, of which she
was allegedly deprived by the 1992 legislation may be assimilated to
a "possession". The applicant also claims that the requirement of the
general interest is not satisfied by the 1992 Social Contributions and
Benefits Act as it only takes into account the occupational or personal
pensioner`s income and not any other income or capital the redundant
employee might receive.
The applicant also complains under Article 14 of the Convention
that female employees are forced to take retirement at the age of 55
while male employees only have to accept early retirement at the age
of 60. She states that had she realised that she would not be entitled
to unemployment benefit between the ages of 55 and 60, she would have
preferred to continue in employment until the age of 60.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1 (P1-1)
that she was deprived of the unemployment benefit to which she was
entitled after having contributed to the national insurance fund for
25 years. She also claims that the legislation on the basis of which
she was deprived of her right was not in accordance with the general
interest as it did not take into account other forms of capital or
income redundant employees might have received and has therefore put
them in a better position.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"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 Commission recalls that in the case of Gaygusuz (Eur. Court
HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV,
No. 14) the European Court of Human Rights found that a claim to a
social benefit funded at least in part by contributions was a
"pecuniary right" for the purposes of Article 1 of Protocol No. 1
(P1-1). The provision was therefore applicable. The position in the
present case is similar: the applicant contributed over a number of
years to the national insurance fund, and was thereby entitled to claim
unemployment benefit. Her claim was therefore a "pecuniary right". The
Commission must next determine whether the requirements of Article 1
of Protocol No. 1 (P1-1) have been complied with in the present case.
The Commission recalls that even where Article 1 (Art. 1)
guarantees the right to derive benefit from a benefits system, it does
not guarantee a specific amount of payment (see, for example, No.
10671/83, Dec. 4.3.85, D.R. 42, p. 229 at p. 232 with further
references).
In the present case, the applicant was entitled to apply for
unemployment benefit as she had made the requisite contributions and
had been made redundant. She was refused payments on the ground that,
as provided for by the relevant rules, she was in receipt of an
occupational pension which exceeded the amount of the benefit she would
otherwise have received. Her entitlement was not to unemployment
benefit of a fixed amount, but to make a claim for unemployment benefit
which would be determined in accordance with the rules in force at the
time.
The Commission considers that the "means-testing" of social
welfare benefits cannot of itself be contrary to Article 1 of
Protocol No. 1 (P1-1) of the Convention. The aim of social welfare
benefits is to provide those in need with financial support, and means-
testing is no more than a method of assessing need.
Moreover, the introduction in 1992 of a form of means-testing
cannot be said to be contrary to Article 14 (Art. 14) of the Convention
either, as it is in the nature of social welfare benefits that the
calculation of the amounts to be paid varies from time to time in
accordance with the economic and social conditions (see Müller v.
Austria, No. 5849/72, Comm. Report 1.10.75, D.R. 3, p. 25 at p. 32,
para. 31).
The Commission does not accept the applicant's contention that
there was no general or public interest for the means-testing because
it was only applied to recipients of occupational pensions: first, the
question in connection with Article 1 of Protocol No. 1 (P1-1) is
whether there was a general or public interest for the change in the
way the applicant's entitlement to unemployment benefit was calculated,
and there clearly was; secondly, States enjoy a wide discretion in
determining the general interest for a particular type of social
welfare benefit, and thirdly, the Section 30 (3) 1992 Act does make
provision for the possibility of Regulations to bring into account lump
sums or other benefits.
Having regard to the above considerations, the Commission finds
that this part of the application is manifestly ill-founded, within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also alleges violation of Article 14 of the
Convention taken in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1). She claims that she was discriminated against in
comparison to men, who cannot be required to take compulsory retirement
at 55, but only at 60.
Article 14 (Art. 14) of the Convention provides as follows:
"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 Commission notes that this complaint relates to the
applicant's redundancy, or compulsory retirement, rather than to
questions of unemployment benefit. In the absence of any domestic
remedies to exhaust, and assuming that the State is responsible for
matters complained of, the Commission finds that, in accordance with
its case-law, the six months' period in Article 26 (Art. 26) of the
Convention runs in respect of this complaint from the date of the
redundancy, that is, 30 June 1994 (see No. 7379/76, Dec. 10.12.76, D.R.
8, p. 211).
The application, however, was introduced only on 11 December
1996, that is, more than six months after the date of the redundancy.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy