FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
61395/00 26 applications against the United Kingdom
(see attached table)
The European Court of Human Rights (Fourth Section), sitting on 15 October 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.
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
Throughout the period in question, the time-limits for claiming widow’s benefits were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), regulation 19 (as amended) of which provided:
“(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;(...)”
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.
7. Northern Ireland
Precise equivalents of all of the above provisions of primary and secondary legislation appear in Northern Ireland legislation.
COMPLAINTS
The applicants complain that British social security and/or tax legislation is discriminatory on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with Article 8 of the Convention and/or Article 1 of Protocol No. 1. The applicants in application nos. 66093/01 and 67122/01 also complain that they have been discriminated against as compared with other men who have been paid sums equivalent to the Bereavement Tax Allowance. Certain of the applicants also invoke Article 13 of the Convention.
THE LAW
1. The applicants complain that British social security and/or tax legislation discriminates against them on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with Article 8 of the Convention and/or Article 1 of Protocol No. 1.
Article 14 states:
“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 states:
“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.”
The applicants in applications nos. 61395/00, 65475/01, 68429/01, 68430/01, 68929/01, 70520/01, 75091/01, 76944/01, 77423/01, 78044/01 and 10721/02 also invoke Article 13 of the Convention.
Article 13 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 in applications nos. 61395/00, 65475/01, 68429/01, 68430/01, 68929/01, 70520/01, 73656/01, 75091/01, 75998/01, 76944/01, 77423/01, 78044/01, 78049/01, 672/02 and 10721/02 complain also 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 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.
3. The applicants in application nos. 66093/01 and 67122/01 also complain that they have been discriminated against as compared with other men who have been paid sums equivalent to the Bereavement Tax Allowance. The Court notes that the men concerned have received those payments in friendly settlement of applications which have been communicated to the Government by this Court. The Court considers that the applicants in the present cases are not in an analogous situation to those men and thus concludes that this aspect of application nos. 66093/01 and 67122/01 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.
4. In relation to those applicants who invoke Article 13 of the Convention (see above), 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 applications concerned is also 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 to adjourn the examination of the applicants’ complaints of discrimination suffered by them on grounds of sex in connection with their claims for widows’ benefits and/or Bereavement Tax Allowance;
Declares inadmissible the remainder of each application.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy