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Judgment of the Court (Sixth Chamber) of 4 February 1992.

The Queen v Secretary of State for Social Security, ex parte Florence Rose Smithson.

C-243/90 • ECLI:EU:C:1992:54 • 61990CJ0243

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The Queen v Secretary of State for Social Security, ex parte Florence Rose Smithson.

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Keywords

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Social policy - Equal treatment of men and women - Scope ratione materiae of Directive 79/7 - Housing benefit - Excluded

(Council Directive 79/7, Art. 3(1) )

Summary

Article 3(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, which defines the directive' s scope ratione materaie, must be interpreted as not applying to a scheme for housing benefit the amount of which is calculated on the basis of the relationship between a notional income to which the beneficiary is deemed to be entitled and his or her actual income, even if criteria concerning protection against some of the risks covered by the directive, such as sickness or invalidity, are applied in order to determine the amount of the notional income.

Parties

In Case C-243/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the High Court of Justice, Queen' s Bench Division, for a preliminary ruling in the proceedings pending before that court between

The Queen

and

Secretary of State for Social Security

Ex parte: Florence Rose Smithson

on the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979 L 6, p. 24),

THE COURT (Sixth Chamber),

composed of: F.A. Schockweiler (President of the Chamber), G.F. Mancini and C.N. Kakouris, Judges,

Advocate General: G. Tesauro,

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of:

- Florence Rose Smithson, by Nicholas Warren, Solicitor,

- the United Kingdom, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, assisted by Richard Plender QC, and David Pannick, Barrister,

- the Commission of the European Communities, by Nicholas Khan, a member of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral observations on behalf of Miss Smithson (represented by Richard Drabble, Barrister), the United Kingdom and the Commission at the hearing on 26 September 1991,

after hearing the Opinion of the Advocate General at the sitting on 20 November 1991,

gives the following

Judgment

Grounds

1 By an order of 26 June 1990, which was received at the Court of Justice on 9 August, the High Court of Justice, Queen' s Bench Division, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979 L 6, p. 24).

2 The questions arose in the course of a dispute between Miss Smithson and the Secretary of State for Social Security concerning the determination of housing benefit for Miss Smithson.

3 It appears from the documents in the main case that in the United Kingdom housing benefit is paid pursuant to the Social Security Act 1986 to persons whose real income is lower than a notional income known as the "applicable amount". One of the elements which may be taken into account in order to determine that applicable amount is the "higher pensioner premium" which is applicable, inter alia, to persons aged between 60 and 80, who live alone and are in receipt of one or more other social security benefits including, in particular, an invalidity pension.

4 Under the Social Security Act 1975 an invalidity pension is payable up to pensionable age, which is 60 for women and 65 for men. Persons who have passed that age but remained in regular employment are also paid an invalidity pension for a period of five years after the date on which they reached pensionable age. Anyone who has retired but not yet reached the age of 65 (for women) or 70 (for men) may elect to withdraw from the pension scheme in order to obtain an invalidity pension.

5 Miss Smithson ceased at the age of 60 to draw the invalidity pension which she had been receiving until then. She was informed that the higher pensioner premium did not apply to her because she did not fulfil the supplementary condition of being in receipt of an invalidity pension. Since she was 67, Miss Smithson was also unable to elect to leave the pension scheme in order to draw an invalidity pension.

6 When she brought proceedings challenging the refusal of the British authorities to allow her the benefit of the premium the High Court of Justice, Queen' s Bench Division, decided to stay the proceedings pending a ruling from the Court of Justice on the following questions:

"1. Does the inability of a woman aged between 65 and 70 to claim and receive higher pension premium on the basis of paragraph 10(1)(b)(i) of Schedule 2 to the Housing Benefit (General) Regulations 1987 contravene Article 4 of Council Directive 79/7?

2. Is a woman aged between 65 and 70 entitled, by reason of the combined effect of Section 2 of the European Communities Act 1972 and Article 4 of Council Directive 79/7, to give notice of de-retirement pursuant to Section 30(3) of the Social Security Act 1975, to claim and receive (if otherwise eligible) invalidity benefit under Section 15 of that Act, and to claim and receive higher pension premium on the basis of paragraph 10(1)(b)(i) of Schedule 2 to the Housing Benefit (General) Regulations 1987?"

7 By an order of 24 January 1992 the Court (Second Chamber) granted legal aid to the executors of the will of Miss Smithson, now deceased.

8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

9 By way of introduction, it should be remembered that the Court has consistently held that it has no jurisdiction in proceedings under Article 177 of the Treaty to rule on the conformity of national measures with Community law. The Court may, however, extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern the interpretation of Community law for the purpose of enabling that court to resolve the legal issues before it (see, inter alia, Case 14/86 Pretore di Salò [1987] ECR 2545).

10 Accordingly, it is apparent that, by its first question, the national court seeks to know whether Article 3(1) of Directive 79/7 is to be interpreted as being applicable to a scheme for housing benefit the amount of which is calculated on the basis of the relationship between a notional income to which the beneficiary is deemed to be entitled and his or her actual income, if criteria concerning protection against certain risks covered by the directive, such as sickness or invalidity, are applied in order to determine the amount of that notional income.

11 It should be noted that according to the first and second paragraphs of the preamble to Directive 79/7 the purpose of the directive is to ensure the progressive implementation of the principle of equal treatment for men and women in matters of social security.

12 According to Article 3(1) the directive applies to statutory schemes which provide protection against, inter alia, the risk of invalidity or old age, and to provisions concerning social assistance, in so far as they are intended to supplement the invalidity scheme. In order to fall within the scope of Directive 79/7, therefore, a benefit must constitute the whole or part of a statutory scheme providing protection against one of the specified risks or a form of social assistance having the same objective (Case 150/85 Drake [1986] ECR 1995, paragraph 21).

13 In the judgment just cited (paragraph 24) the Court held that a benefit constituted part of the statutory scheme providing protection against the risk of invalidity despite the fact that it was paid partly to the beneficiary himself and partly to the person providing care; it emphasized in that regard that the payment of the benefit to a person who provided care still depended on the existence of invalidity inasmuch as the latter was an essential condition for such payment, and pointed out the clear economic link between the benefit and the disabled person, who derived an advantage from the fact that an allowance was paid to the person caring for him.

14 It is therefore clear that although the mode of payment is not decisive as regards the identification of a benefit as one which falls within the scope of Directive 79/7, in order to be so identified the benefit must be directly and effectively linked to the protection provided against one of the risks specified in Article 3(1) of the directive.

15 However, Article 3(1)(a) of Directive 79/7 does not refer to statutory schemes which are intended to guarantee any person whose real income is lower than a notional income calculated on the basis of certain criteria a special allowance enabling that person to meet housing costs.

16 The age and invalidity of the beneficiary are only two of the criteria applied in order to determine the extent of the beneficiary' s financial need for such an allowance. The fact that those criteria are decisive as regards eligibility for the higher pensioner premium is not sufficient to bring that benefit within the scope of Directive 79/7.

17 The premium is in fact an inseparable part of the whole benefit which is intended to compensate for the fact that the beneficiary' s income is insufficient to meet housing costs, and cannot be characterized as an autonomous scheme intended to provide protection against one of the risks listed in Article 3(1) of Directive 79/7.

18 Consequently, the answer to the first question referred by the High Court, Queen' s Bench Division, must be that Article 3(1) of Directive 79/7 must be interpreted as not applying to a scheme for housing benefit the amount of which is calculated on the basis of the relationship between a notional income to which the beneficiary is deemed to be entitled and his or her actual income, even if criteria concerning protection against some of the risks listed by the directive, such as sickness or invalidity, are applied in order to determine the amount of the notional income.

19 The second question does not require an answer because, as the Commission pointed out in its observations, it is concerned solely with the means whereby the applicant in the main proceedings may pursue her rights if the first question is answered in the affirmative.

Decision on costs

Costs

20 The costs incurred by the United Kingdom and the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, a step in the proceedings pending before the national court, the decision as to costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions submitted to it by the High Court of Justice, Queen' s Bench Division, by an order of 26 June 1990, hereby rules:

Article 3(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as not applying to a scheme for housing benefit the amount of which is calculated on the basis of the relationship between a notional income to which the beneficiary is deemed to be entitled and his or her actual income, even if criteria concerning protection against some of the risks listed by the directive, such as sickness or invalidity, are applied in order to determine the amount of the notional income.

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