FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications no. 34726/04, 14287/05, 34702/05
by Robert Charles John SPRINGETT, Gerald Thomas EASTO-BRIGDEN, Vivien SHEFFIELD
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 27 April 2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 September 2004,
Having regard to the decision to join the applications,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Robert Charles John Springett, is a British national who was born in 1925 and lives in Roquefort, France. The second applicant, Mr Gerald Thomas Easto-Brigden, is a British national who was born in 1926 and lives in Barcelona, Spain. The third applicant, Mrs Vivien Sheffield, is a British national who was born in 1943 and lives in Tenerife, Spain.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1.The first applicant
On 14 August 2002 the applicant's claim for payment under the Winter Fuel Payment (“WFP”) scheme was rejected by the Pensions Service, on the ground that as he had left the United Kingdom in 1982, before the scheme was introduced, he had “never acquired entitlement to the benefit.”
On 13 August 2003 an appeal against the Pensions Service's decision was refused on the same grounds as the original decision.
The applicant submitted a further complaint to the Commission of the European Union and was informed by a letter dated 9 September 2004 that the policy of the British Government to restrict the WFP to individuals who had “acquired entitlement” by receiving the payment before leaving the United Kingdom created a difference in treatment between pensioners, depending on when or how old they were when they moved abroad. However, the policy was not contrary to European Union (EU) Law and the matter could not, therefore, be taken further.
2.The second applicant
In 2004 the second applicant applied to be considered for WFP. On 24 February 2005 his application was turned down on the basis that he had never acquired entitlement to the payment because he had left the United Kingdom in October 1993. On 8 April 2005 a final confirmation that he would not be eligible was issued by the Pensions Service. The applicant challenged that decision, but never received a reply from the Winter Fuel Office.
3.The third applicant
On 10 July 2003, the third applicant applied to be considered for WFP in respect of the winter of 2002/3. On 6 November 2003 this claim, and her claim for 2003/4, were turned down on the basis that she had left the United Kingdom in December 1997, before acquiring entitlement. She claims that she was not resident outside the United Kingdom before 1 January 1998.
On 9 March 2004 her appeal was rejected on the same grounds, by the Appeals Tribunal. On 28 June 2004 the Social Security Commissioner refused her leave to appeal. This matter was revised because a second pensioner in a similar position had his case considered in the light of EU law before the Commissioner, in October 2004. This latter case was dismissed. Consequently, on 23 May 2005 the Commissioner refused to set aside his refusal to grant the applicant leave to appeal.
B. Relevant domestic law and practice
WFP is a non-contributory, non-means tested benefit of between GBP 100 and GBP 200 or, for a person aged 80 or over, GBP 300 per annum paid, since 5 January 1998, to residents of the United Kingdom aged 60 or more.
European Regulation 1408/71 on the co-ordination of social security schemes for people who move within the EU provides that a person may “export” to another Member State a social security benefit he or she is entitled to in their home Member State. However, the regulation leaves it to the Member States to determine the conditions of entitlement to social security benefits, and requires Member States only to “export” benefits to people who are subject to its legislation.
Following complaints to the European Commission about the non-availability of WFP to those living outside the United Kingdom, in 2000 domestic law was amended so that individuals residing in other EU Member States could also receive the winter fuel payment as long as they had received it before leaving the United Kingdom.
According to the 2002 legislation, claimants had the choice to leave the United Kingdom before reaching the age of 60 with no WFP or remain until reaching the age of 60, receive one payment and thereby export their WFP yearly thereafter.
COMPLAINT
The applicants complain that the refusal to grant WFP based on the date on which each left the United Kingdom is discriminatory and violates their rights under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention.
THE LAW
Article 1 of Protocol No. 1 provides:
“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.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] 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 Court's case-law has established the following principles as regards complaints of discrimination within national welfare and benefits schemes (see, in particular, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 39, ECHR 2005‑X and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61-62, 16 March 2010, and the cases cited therein):
1. Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions.
2. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles.
3. In cases concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular welfare benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.
4. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14.
5. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.
6. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation”.
7. The Court is concerned with the compatibility with Article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation.
Applying these principles to the facts of the present case, the Court observes that the applicants complain about the non-payment to them of a welfare benefit, the Winter Fuel Payment (“WFP”). It considers that this complaint falls within the scope of Article 1 of Protocol No. 1 (see Stec, cited above, § 56).
The applicants complain that they are treated less favourably than, first, residents of the United Kingdom of the same age and, secondly, individuals who moved to another country within the EU after having acquired entitlement to the WFP, which was first introduced on 5 January 1998.
In order to determine whether Article 14 is applicable, the Court must first determine whether the applicants were treated differently on one of the grounds prohibited by that Article. The applicants, who live outside the United Kingdom, are treated differently to residents of the United Kingdom, who automatically receive the WFP at the age of 60. In Carson the Court held that that place of residence constitutes an aspect of personal status for the purposes of Article 14 (Carson, cited above, §§ 70-71).
However, the Court does not consider that the applicants can claim to be in a relevantly similar position to United Kingdom residents. WFP is part of an interlocking system of social welfare benefits which exists to ensure a certain minimum standard of living for residents of the United Kingdom. In particular, it is designed to assist older people, who as a group are more vulnerable to extreme cold, to heat their homes during the British winter. Given that the WFP is, therefore, primarily designed to serve the needs of those resident in the United Kingdom, it is hard to draw any genuine comparison with the position of older people living elsewhere, particularly in southern Europe where the applicants live, because of differences in climate as well as the range of economic and social variables which apply from country to country (see, mutatis mutandis, Carson, cited above,
§§ 85-86). The Court does not, therefore, consider that the applicants can claim to be in an analogous position to residents of the United Kingdom.
The Court must next consider that position as regards the second comparator group, namely individuals who moved to another EU State after 5 January 1998, when WFP was introduced, and after attaining entitlement to WFP at the age of 60. The basis of the difference of treatment between the applicants and the members of this group is that the latter had acquired a right to the benefit before leaving the United Kingdom. The Court does not consider that the fact of having, or not having, acquired a right to a welfare benefit can be considered to be an aspect of personal status within the meaning of Article 14. Unlike the principal grounds set out in Article 14, such as “sex”, “race” or “colour”, it is not an innate characteristic which applies from birth. Furthermore, unlike “religion”, “political or other opinion” or even place of residence, the fact of having acquired a right to a benefit does not relate to a core or personal belief or choice. The Court does not consider that the fact that the United Kingdom decided to give effect to a provision of EU law by permitting individuals who had already acquired a right to WFP under domestic law to “export” this benefit when moving to another EU State gives rise to any issue under Article 14 taken in conjunction with Article 1 of Protocol No. 1.
It follows that, since Article 14 does not apply, the applications must be rejected as incompatible ratione materiae pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to declare the applications inadmissible.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy