Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27537/95

by George CARLIN

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 August 1994 by

George CARLIN against the United Kingdom and registered on 7 June 1995

under file No. 27537/95;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1958. He is currently

imprisoned in HM Prison Glenochil in Scotland. He is represented by

Levy and McRae, Solicitors practising in Glasgow.

A. The particular facts of the case

On 19 June 1978 the applicant injured his right hand while

working for the Clyde Binding Company. His right hand was crushed and

tendons damaged, requiring two operations. The applicant's injury was

assessed as 20% for life and he was awarded Industrial Injuries

Invalidity benefit (IIDB), an index-linked benefit set by law, by the

Department of Social Security ("DSS"). In February 1993 the applicant

was receiving £18.73 per week in Industrial Injuries Disablement

benefit.

On 19 February 1993 the applicant was arrested. On 16 June 1993

he was informed that his disablement pension had been suspended and

that the suspension was to take effect from 23 February 1993, the day

following his remand in custody. On 3 September 1993 the applicant was

sentenced to life imprisonment.

On 19 June 1994 the applicant wrote to the DSS contesting the

suspension of his Industrial Injuries Disablement benefit. His

complaints were referred to the Policy Branch in London and in turn to

the General Adjudication Service in Leeds. By letter dated

16 August 1994 the DSS, referring to the ruling of the Adjudication

Officer, confirmed that the suspension of payment of Industrial

Injuries Disablement benefit to the applicant was correct and that

there could be no exception to that suspension. Further, the letter

stated that on the applicant's release the adjudication officer would

decide the amount due to the applicant, based on the most favourable

year of his imprisonment. On 12 December 1994 the applicant completed

a Scottish Prison Service Form (No. 258), requesting an appeal from the

decision of the Adjudication Officer referred to above. By letter dated

16 January 1995 the applicant was informed by the DSS that no right of

appeal existed from the suspension of the benefit since it was imposed

by the Secretary of State.

B. Relevant domestic law and practice

The Industrial Injuries Scheme provides benefits for disablement

caused by accidents at work. The Scheme only covers disablement

suffered at work at a time when a person is an employed earner as

defined for National Insurance purposes. The armed forces and the self-

employed are excluded from the Scheme. No conditions as to payment of

National Insurance or other contributions are placed upon eligibility

to receive benefits under the Scheme. Industrial injuries benefits are

generally payable in addition to incapacity and disability benefits,

and are taken into account as income in calculating entitlement to

income related benefits. They are tax-free and are paid regardless of

whether the recipient is working at the time of payment and regardless

of the recipient's earnings, if any.

The main benefit under the Scheme, is Industrial Injuries

Disablement Benefit ("IIDB") which is paid weekly after 90 days from

the date of the industrial accident. The rate depends upon the degree

of disablement, which is defined in terms of the loss of function

arising from the injury rather than the nature of the injury sustained.

The same level of IIDB is awarded to all individuals with the same

level of injury and thus bears no relation to income or contributions

to the social insurance system.

Between 1946 and 1975 benefits under the Scheme were paid from

a self-standing Industrial Injuries Fund, itself funded (as to five

sixths) by flat-rate contributions from employers and employees and (as

to one sixth) by contributions from general taxation. In 1975 the

Industrial Injuries Fund was abolished, and between 1975 and 1990,

benefits under the Scheme were paid out of the National Insurance Fund,

which is controlled and managed by the Secretary of State for Social

Security. Since 1990, they have been paid from the Consolidated Fund,

entirely out of general taxation.

Section 113(1)(b) (formerly section 82(5)(b) of the Social

Security Act 1975) of the Social Security Contributions and Benefits

Act 1992 provides (subject to exceptions provided for in regulations)

that persons should be disqualified from receiving most contributory

and non-contributory social security benefits, including industrial

injuries benefits for the period during which that person is undergoing

imprisonment.

IIDB is excluded from the operation of that provision by virtue

of regulation 2(6) of the Social Security (General Benefit) Regulations

SI 1982/1408 ("the Regulations") which provides that section 113(1)(b)

shall not operate to disqualify a person from receiving IIDB, for any

period during which he is undergoing imprisonment.

However, under regulation 3(1) of the Regulations, payment of

IIDB to a person undergoing imprisonment or detention in legal custody

shall be suspended while that person is in detention. Regulation 2(7)

to which Regulation 2(6) is subject, provides that on release, a

maximum of one year's retrospective disablement pension can be claimed.

COMPLAINTS

The applicant complains that his right to IIDB has been suspended

whilst in prison. He claims that IIDB amounts to a contributory

benefit for which his employer paid national insurance contributions

and in which he has a patrimonial interest. He complains that this is

imposed on prisoners who are disabled in a discriminatory manner. The

applicant has not invoked any specific Article of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 August 1994 and registered

on 7 June 1995.

On 15 January 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

30 April 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 30 June 1997.

On 28 May 1997 the Commission granted the applicant legal aid.

THE LAW

1. The applicant complains about the suspension of payment of

Industrial Injuries Disablement Benefit (IIDB) during his imprisonment.

The Commission has examined this complaint under Article 1 of Protocol

No. 1 (P1-1) to the Convention which 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".

The Government submit that entitlement to a state benefit such

as IIDB does not constitute a "possession" for the purposes of

Article 1 of Protocol No. 1 (P1-1) of the Convention. The Government

rely on a number of factors, in particular the non-contributory nature

of the scheme, namely, that payment of contributions to the National

Insurance Fund is not a precondition for the payment of the IIDB and

therefore entitlement to this social benefit is not linked to any such

payment. They further submit that since 1990 the IIDB has been financed

from general tax revenues received in the year in which payments are

made and not from a fund in which identifiable and claimable interests

can be found. Even prior to 1990, the benefit was paid out of the

National Insurance Fund, the income of which was received, in a very

significant part, from contributions made by employers rather than

contributions made by the employees. The Government also state that

the entitlement to IIDB forms part of a general insurance scheme based

on the principle of social solidarity. Under domestic law the IIDB does

not constitute a possession and cannot, for example, be the subject of

a charge or be assigned.

Finally the Government submit that even assuming the entitlement

to the IIDB constitutes a "possession" under Article 1 of Protocol

No. 1 (P1-1), the suspension of payment amounts to a control of

property that strikes a fair balance between the general interest of

the community and the requirements of the protection of the

individual's fundamental rights. The Government argue that as long as

the prisoner is maintained at public expense there is no need for him

to receive the benefit in question.

The applicant argues that the intention of the Scheme was to

create a "possession" as defined in Article 1 of Protocol No. 1 (P1-1)

albeit a potential "possession" which would become actual in the event

of an accident being suffered by one of the contributors, such as the

applicant. He submits that the word "entitlement" referred to in the

Social Security Contributions and Benefits Act 1992, carries with it

the inference of "possession" in terms of Article 1 (Art. 1).

The applicant further disputes the relevance of the Government's

referring to social solidarity. He submits that contribution to any

insurance scheme normally conveys a patrimonial interest or

"possession" and that he had made contributions by way of National

Insurance contributions deducted from his salary.

Finally, the applicant disputes that any legitimate aim is served

by suspending payments of disablement benefits to persons in prison,

pointing out that the entitlement accrues in respect of an injury which

he continues to suffer. He argues that there is, and can be, no

requirement that the benefit is used for support and the fact that he

is living in prison is not a justification for not paying it. Accruing

payments over the period of detention would in addition serve the

beneficial purpose of aiding a successful rehabilitation in the

community on his release.

The Commission recalls that it has considered the status of

disability benefits in relation to Article 1 of Protocol No. 1

(P1-1) in a number of previous cases. In De Kleine Staarman v. the

Netherlands (No. 10503/83 Dec. 16.5.85, D.R. 42, p. 166) which

concerned the withdrawal of disability benefit from a woman upon

marriage, it held that the right to disability benefit did not

constitute a property right which could be described as "possessions"

within the meaning of Article 1 of Protocol No. 1 (P1-1) because the

relevant social security legislation, ie. General Labour Disability

Act, was set up as a general insurance based on the principle of social

solidarity and as there was no direct link between the level of

contributions and the benefits awarded, a person did not have, at any

given moment, an identifiable and claimable share in the fund. However,

where the body responsible for paying unemployment benefit was partly

financed by the National Social Security Office to which an applicant

paid contributions as a worker, the question as to whether the

unemployment benefit could be considered "possessions" within the

meaning of Article 1 of Protocol No. 1 (P1-1) was left open (Claes v.

Belgium, No. 11285/84 Dec. 7.12.87, D.R. 54, p. 94).

More recently, the Commission observes that in the case of

Gaygusuz v. Austria (Eur. Court HR, judgment of 16 September 1996,

Reports 1996-IV, No. 14, paras. 39-41), which concerned the right to

emergency assistance for an unemployed person, the Court noted that

emergency assistance was linked to and dependent upon a payment of

contributions and held that in these circumstances the right to

emergency assistance was a pecuniary right for the purposes of Article

1 of Protocol No. 1 (P1-1).

The Commission notes that while the disablement benefit awarded

to the applicant in this case is not a benefit for which the applicant

made direct contributions, IIDB is in fact payable only to qualifying

workers who are subject to the national insurance regime. There is

therefore a link between entitlement to the benefit and the applicant's

status as an employee paying into the national insurance system.

However, the Commission finds it unnecessary to decide whether this

indirect connection between contributions and benefit is sufficient to

give an entitlement to IIDB the character of "possessions" within the

meaning of Article 1 of Protocol No. 1 (P1-1). Even assuming that it

did, it is still necessary, in order for such a right to be

established, that the person concerned should have satisfied domestic

legal requirements governing the right to IIDB (No. 11285/84 op. cit.).

The Commission recalls that pursuant to Regulation 3(1) of the

Social Security (General Benefit) Regulations SI 1982/1408 the

entitlement to IIDB is subject to suspension of payment when the

recipient is in prison. This condition was in force when the applicant

was taken into custody.

The Commission therefore finds that the suspension of the

applicant's entitlement in conformity with applicable regulations does

not constitute an interference with possessions within the meaning of

Article 1 of Protocol No. 1 (P1-1) of the Convention.

It follows that this aspect of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The Commission has also examined the applicant's complaints under

Article 14 (Art. 14) of the Convention, which 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."

The case-law of the Convention organs establishes that it is not

every difference in treatment which constitutes discrimination within

the meaning of Article 14 (Art. 14) of the Convention. It must be

established that other persons in an analogous or relevantly similar

situation enjoy preferential treatment (see eg. Eur. Court HR Van der

Mussele judgment of 21 November 1982, Series A no. 70, Fredin v. Sweden

(No. 1) judgment of 18 February 1991 Series A no. 192, p. 19 para. 60).

The Commission recalls that the applicant complains of

discrimination as a prisoner. However, it finds that the comparison of

prisoners with non-prisoners as regards conditions applicable to

receipt of State welfare benefits is a comparison of two different

factual situations and as such discloses no discrimination under

Article 14 (Art. 14) (see mutatis mutandis Nos. 27004/95 and 27011/95

Szrajber and Clarke v. UK decs. 23.10.97 unpublished, concerning

entitlements to contributory state-run pension schemes which are

suspended during prison sentences).

It follows that this aspect of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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CARLIN v. THE UNITED KINGDOM

CARLIN v. THE UNITED KINGDOM

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