AS TO THE ADMISSIBILITY OF
Application No. 12639/87
by John VAUGHAN
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission,
assisted by Mr. J.P. Gardner
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 October 1986
by John Vaughan against the United Kingdom and registered
on 30 December 1986 under file No. 12639/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as they have been submitted by the applicant, a
British citizen, born in 1949, currently unemployed and living in
Liverpool, may be summarised as follows:
The applicant was married but is now divorced. There are two
children from that marriage: A, a boy, and B, a girl, born in about
1977 and 1978 respectively.
In the decree of divorce the applicant's wife was granted
custody of the children and the applicant was accorded reasonable
access to them. By agreement, the children normally stay with the
applicant each weekend. It appears that there is, however, in force
an injunction prohibiting the applicant from approaching his former
wife's home and a requirement, that, whenever the children are delivered
to or collected from her, this be done by a third party. In
order to collect the children, the applicant either sends a taxi for
them or arranges for another adult to collect them and bring them by
bus to his home and pays the attendant travel fares. The distance
between the two houses is approximately seven miles. The applicant
states that he is always responsible for making the travel
arrangements and obtaining an independent person to accompany the
children and that he receives no assistance in this from his former
wife. He states that it is clear from the various court orders made
following the breakdown of his marriage that the court cannot make any
further provision to ease the access situation.
The applicant, as he is unemployed, receives Supplementary
Benefit. Under Section 1(1) of the Supplementary Benefits Act 1976,
he is entitled to benefit to meet his requirements. Requirements are
divided into three categories: normal, additional and housing. The
applicant regularly receives a sum for maintaining and feeding the
children each weekend. The applicant does not however receive a sum
in respect of the travel expenses in relation to his children's visits
to his home at weekends. The items classified as additional
requirements include, in defined circumstances, fares for regular
visits to another person in hospital, but they do not include payments
for fares of children travelling between the homes of divorced
parents. Under Section 3(1) payment can be made of "... supplementary
benefit by way of a single payment ... to meet an exceptional need".
Under the Supplementary Benefit (Single Payments) Regulations
1981, a single payment can be made in respect of travelling expenses
arising from a "domestic crisis" (Regulation 22(1)) and also a single
payment may be made to meet an exceptional need where not otherwise
provided for, if such payment "is the only means by which serious
damage or serious risks to the health or safety of any member of the
assessment unit may be prevented" (Regulation 30).
On 14 November 1984 the applicant made a claim to be paid the
cost of fares for conveying his children to and from his home as an
additional requirement. This claim was rejected as it did not come
within the items classified as additional requirements.
The Adjudication Officer also considered whether a series of
payments could be made in respect of these fares under Section 3 of
the 1976 Act and the Supplementary Benefit (Single Payments)
Regulations 1981, but decided that they could not.
The applicant appealed against this decision to a Social
Security Appeal Tribunal and thereafter to a Social Security
Commissioner. In both instances his appeal was turned down. The
applicant then appealed to the Court of Appeal.
Before the Court of Appeal the applicant submitted a statement
from the Merseyside Chief Probation Officer, who made the following
comments:
"(The applicant) is keen to have regular access to his
son and daughter, for whom he has a deep attachment. (He)
has for several years been in receipt of DHSS benefit -
thus is of limited financial means. In order to conform
with the access conditions imposed by the High Court he
sought assistance from Social Services and the Probation
Service - but neither were able to assist financially or by
providing transport for the children. So (the applicant)
has been obliged to use a taxi to pick up and return the
children - at a weekly cost of some £6 now. This factor -
bearing in mind his limited financial means - inevitably
places constraints on his capacity to enjoy legal access to
his children as allowed by the High Court...
I would support (the applicant) because I believe that he
has drawn attention to a major problem which needs rectifying.
It is vital that parents be enabled to enjoy legal access to
their children as permitted by the High Court - and it is
vital that limited financial means should not stand in the
way of this access. The problem which (the applicant) is
highlighting is likely to increase as more and more parents
become unemployed and dependent on state benefits.
It would, therefore, be of great benefit to (the applicant)
and his children - and then to a great many other families
in similar circumstances - if the Court of Appeal were to
determine in favour of (him)."
The Court of Appeal, in examining the regulations which may
have been relevant, rejected the applicant's contention that the words
"exceptional need" covered the applicant's situation. The Court of
Appeal went on to state:
"In my judgment the phraseology 'single payment to meet an
exceptional need' makes it clear that an exceptional need is
to be distinguished from a regular, recurring need. An
exceptional need may involve expenditure on a single
occasion - as on the purchase of bedding, or for fares for
a single journey - or may cover expenditure on several
occasions over a limited period to time, - e.g. for fares
for several journeys to visit a child who is with the other
parent pending a decision by the Court as to custody of
the child (Regulation 22(1)(c)). But if the need does
involve expenditure on several occasions, it must be a need
which will come to an end after a limited, temporary period
if it is to satisfy the wording of the Act."
The Court of Appeal dismissed the applicant's appeal on 16
July 1986. The applicant states that leave to appeal to the House of
Lords was refused.
COMPLAINTS
The applicant complains that as an unemployed person in
receipt of Supplementary Benefit he is unable to recover the cost of
travelling expenses incurred in picking up and delivering his children
from and to his former wife's house. He complains that the expenses
incurred are unavoidable as there is in force an injunction preventing
him from approaching his former wife's house and he states that the
court cannot make any further orders to ease the access situation. He
complains that the courts have stated that it is in the children's
best interest to maintain a relationship with both parents but that
the State denies him the means by which he can afford the travel for
his children.
The applicant further complains that he is discriminated
against by comparison to those persons who seek reimbursement for
regular visits to another person in hospital and also by comparison to
the families of prisoners who receive assistance for access every
28 days in appropriate circumstances.
THE LAW
1. The applicant's main complaint concerns the fact that, as an
unemployed person in receipt of Supplementary Benefit, he is unable to
recover as part of his Supplementary Benefit entitlement the cost of
travelling expenses arising from his children's access visits. He
states that the courts have held that it is in the children's best
interest to maintain a relationship with both parents, but that the
State denies him the means by which he can afford the travel for his
children.
The Commission however recalls that, under Article 25 para. 1
(Art. 25-2) of the Convention, it is only the alleged violation of one of the
rights and freedoms set out in the Convention that can be the subject
of an application. The right to the reimbursement of travelling
expenses as part of a social security entitlement is not as such
included in the rights and freedoms guaranteed by the Convention.
Insofar as the applicant complains that there has been a
violation of his right to respect for family life under Article 8 (Art. 8) of
the Convention, the Commission considers that the right to respect for
family life does not impose an obligation on States to provide
financial assistance for the purpose of ensuring that individuals can
enjoy family life to the fullest.
It follows that this part of the application is incompatible
ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Insofar as the applicant complains that he has been
discriminated against contrary to Article 14 (Art. 14) of the Convention, the
Commission recalls that Article 14 (Art. 14) provides, so far as material:
"The enjoyment of the rights and freedoms set forth
in this Convention shall be secured without discrimination
on any ground such as ... property, birth or other status."
The Commission has already found that the right claimed by the
applicant that he should be entitled to reimbursement of travelling
expenses arising from his children's access visits is not one which
is, as such, included among the rights and freedoms guaranteed by the
Convention.
The discrimination of which the applicant complains does not
therefore concern the enjoyment of any of the rights and freedoms set
forth in the Convention and no issue arises under Article 14 (Art. 14).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)