FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
55050/00,19 applications against the United Kingdom
(see attached table)
The European Court of Human Rights (Fourth Section), sitting on 12 November 2002 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrA. Pastor Ridruejo,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above applications
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
See attached table.
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 Social Security and Benefits Act 1992 (“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 (at the material time, 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; and
(ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act.
The Widow’s Payment replaced an equivalent earlier payment, called a Widow’s Allowance, paid to qualifying widows under the Social Security Act 1975.
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 cases:
(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 approximately GBP 72.50 per week, with an extra GBP 9.70 per week in respect of the eldest eligible child, and a further GBP 11.35 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 her husband satisfied the contribution conditions set out in a Schedule to the Act and:
(i) at the date of her husband’s death she was over the age of 45 but under the age of 65; or
(ii) 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.
4.Time-limit for applications for benefits
For the period up to 7 April 1997, the time-limits for claiming widows’ benefits were set out in the Social Security (Claims and Payments) Regulations 1987 (“the 1987 Regulations”), regulation 19 of which provided:
“(6) The prescribed time for claiming benefits not specified in column (1) of Schedule 4 shall be – ...
(b) twelve months in the case of ... widow’s benefit ... .
(7)The periods of six and twelve months prescribed by paragraph (6) are calculated from any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.”
As of 7 April 1997, regulation 19 was amended so as to read:
“(2) The prescribed time for claiming the benefits specified in paragraph (3) is three months beginning on the day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.
(3) The benefits to which paragraph (2) applies are-(...)
(g) widow’s benefit;(...)”
The time-limits set out in the amended version of regulation 19 applied to all widows’ benefits claims made as of 7 April 1997, regardless of the date of bereavement.
5.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.”
6.The Welfare Reform and Pensions Act 1999
The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) introduces two new social security benefits, Widowed Parent’s Allowance and Bereavement Allowance. The Widowed Parent’s Allowance replaces the Widowed Mother’s Allowance. The Bereavement Allowance replaces the Widow’s Pension. Both will be payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduces a new social security payment, called a Bereavement Payment, payable both to men and women in place of the Widow’s Payment.
The relevant parts of the Act entered into force on 9 April 2001 and allow any man whose wife dies before, on or after that date, or any woman whose husband dies on or after that date, to apply for Widowed Parent’s Allowance. It also allows any man whose wife dies on or after that date to apply for Bereavement Payment or Bereavement Allowance in exactly the same way as a woman whose husband dies on or after that date.
The 1999 Act preserves the entitlements of women under the 1992 Act whose husbands died before 9 April 2001. They will thus continue to be entitled to the Widow’s Payment, Widowed Mother’s Allowance and Widow’s Pension where the relevant qualifying conditions are met.
COMPLAINTS
The applicants complain that British social security legislation is discriminatory on grounds of sex. Some of the applicants (see table) make the same complaint also in respect of British tax legislation and some complain of discrimination on behalf of their late wives. The applicant in application no. 25379/02 also raises a complaint under Article 13 of the Convention.
THE LAW
1. The applicants complain that the lack of provision for widowers’ benefits under British social security legislation discriminates against them on grounds of sex. The applicants indicated in the table make the same complaint also in respect of lack of provision for Bereavement Tax Allowance for men under British tax legislation. All applicants complain of a continuing violation from their wives’ deaths on the dates set out at column 5 of the table attached.
All the applicants invoke Article 14 of the Convention in conjunction with Article 8 and Article 1 of Protocol No. 1, except the applicant in application no. 63679/00, who does not refer to Article 8, and the applicants in applications nos. 71172/01, 11582/02, 21423/02, 25850/02 and 29216/02, who do not refer specifically to any Article of the Convention.
The applicants in applications nos. 55050/00, 19879/02, 23162/02, 23942/02, 25391/02, 27117/02, 30478/02 and 31968/02 also complain, on behalf of their wives, of discrimination suffered by them in respect of the refusal to pay benefits to the applicants.
The applicant in application no. 25379/02 complains that he has been denied an effective remedy, contrary to Article 13 of the Convention.
Article 14 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.”
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 provides:
“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.”
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
2. The applicants claim that, had they been women and had their wives been men, they would have been aware of their entitlement to widow’s benefits and tax allowances in the event of their death. They claim that this entitlement would have included Widow’s Payment.
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, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 128, §§ 56-59 and Cornwell v. the United Kingdom, (dec.), application no. 36578/97, 11 May 1999, unreported).
In the present cases, until each applicant applied to his local benefits office for widow’s benefits or their equivalent, or to the Inland Revenue for Bereavement Tax Allowance, he could not claim to be a victim of discrimination, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefits or tax allowance under domestic law.
The Court notes that since 7 April 1997, a three-month time-limit, commencing from the date of entitlement, has applied to claims for widow’s benefits by women. A widow who did not claim a Widow’s Payment (now, under the 1999 Act, a Bereavement Payment) within three months of her husband’s death, loses all entitlement to this benefit. Widowed Mother’s Allowance and Widow’s Pension (and their equivalents under the 1999 Act) are continuing benefits which can be claimed at any time, assuming entitlement, but a claim made outside the three-month time-limit cannot be back-dated. Before 7 April 1997 the time-limit was 12 months.
The applicants in applications nos. 55050/00, 63679/00 and 14549/02, as can be seen from the table, applied for widow’s benefits within the relevant time-limit from their wives’ deaths. These applicants can, therefore, claim to be victims of discrimination from the date of bereavement, since a woman in a comparable position would have been able to claim a Widow’s Payment and have her claim for the other benefits back-dated.
The remainder of the applicants who complain about the non-payment of widow’s benefits or equivalent, but who did not claim these benefits within the applicable time-limits, cannot be said to have been directly affected by the discrimination of which they complain during the period between their wives’ deaths, on the dates set out at column 5 of the table attached, and the dates on which they lodged their claims for widows’ benefits, as set out at column 6 of the table. It follows that for the period between their wives’ deaths and the dates on which they lodged their claims for widows’ benefits these applicants cannot claim to have been victims of a violation of their rights under the Convention and First Protocol, and that the applications, insofar as they relate to non-entitlement to widows’ benefits during this period, are incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention. The applicant in application no. 55050/00 complains of discrimination in relation to the non-provision of Bereavement Tax Allowance, but has never made a claim for this allowance to the Inland Revenue in accordance with the principle in Cornwell, this part of the application is incompatible with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicants in applications nos. 55050/00, 19879/02, 23162/02, 23942/02, 25391/02, 27117/02, 30478/02 and 31968/02 also complain about discrimination suffered by their late wives in respect of the decisions to refuse widows’ benefits and/or Bereavement Tax Allowance. However, the Court does not accept that, in respect of any discrimination which may have been suffered by those applicants’ late wives, the applicants concerned can claim to be a victim of the alleged violation. It follows that this aspect of the applications concerned is also incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant in application no. 25379/02 also invokes Article 13 of the Convention. The Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see, for example Willis v. the United Kingdom, no. 36042/97, 21.05.2002, unreported, § 62). It follows that this aspect of the application concerned is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
5. The Court considers that it cannot, on the basis of the file, determine the admissibility of the remainder of each application and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice of them to the respondent Government.
For these reasons, the Court, unanimously,
Decides, in respect of those applications where the applicant complains about discrimination in relation to widow’s tax allowance, to adjourn the examination of the applicants’ complaints in connection with the tax allowance;
Decides, in in respect of those applications where the applicant complains about discrimination in relation to widow’s benefits and made a claim for benefits within the applicable time-limit, to adjourn the examination of the applicants’ complaints in their entirety;
Decides, in respect of those applications where the applicant complains about discrimination in relation to widow’s benefits but failed to make a claim for benefits within the applicable time-limit, to adjourn the examination of the applicants’ complaints in connection with their claims for widows’ benefits relating to discrimination suffered by them during the period after the dates on which they lodged their claims for widows’ benefits;
Declares inadmissible the remainder of each application where the applicant complains about discrimination in relation to widow’s benefits but failed to make a claim for benefits within the applicable time-limit.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy