Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34190/96

by Sarah NAHON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, 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 11 December 1996

by Sarah NAHON against the United Kingdom and registered on 16 December

1996 under file No. 34190/96;

Having regard to the report 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 1936. She is

represented before the Commission by Mr. Neville Maryan Green,

barrister, Paris.

A. Particular circumstances of the case

The applicant was employed by Lloyds Bank Plc ("the Bank") from

4 February 1970 until 30 June 1994, when she was made redundant.

Throughout this period she was paying part of her salary into an

occupational pension scheme. She was also paying national insurance

contributions, which are compulsory and provide amongst other things

for unemployment benefit if the person becomes unemployed.

Since 24 July 1994 the applicant has been receiving an

occupational pension from the Bank of £491.00 a month.

The applicant applied for unemployment benefit for the period of

24 August 1994 to 27 September 1994. The application was refused by the

Adjudicating Officer. The applicant appealed to the Social Security

Tribunal where her lawyers accepted that the domestic law had been

properly applied, but relied on the alleged violation of her rights

under Article 1 of Protocol No. 1 to the European Convention on Human

Rights. The Tribunal dismissed the appeal on 23 April 1996. The

applicant received the decision on 12 June 1996.

B. Relevant domestic law

Section 30 of the Social Security Contributions and Benefits Act

1992, insofar as relevant, provides:

"(1) If payments by way of an occupational or personal pension

which in the aggregate exceed the maximum sum are made for any week to

a person who has attained the age of 55, the rate of any unemployment

benefit to which apart from this section he is entitled for that week

shall be reduced by 10 pence for each 10 pence of the excess; and in

this subsection "the maximum sum" means such sum not less than £35.00

as is prescribed.

(3) Regulations may provide-

(c) for this section to apply, in cases where-

(i) a lump sum is paid to a person in connection with

a former employment of his or arrangements are made

for a lump sum to be so paid; or

(ii) benefits of any description are made available to

a person in connection with a former employment of his

or arrangements for them to be made so available;

as if there were made to a person such weekly payments by way of

occupational or personal pension as are specified in or determined

under the regulations ..."

COMPLAINTS

The applicant invokes Article 1 of Protocol No. 1, claiming that

she has been deprived of her "possessions" by being deprived of the

unemployment benefit for which she had contributed for 25 years.

According to the applicant, her expectation to a right, of which she

was allegedly deprived by the 1992 legislation may be assimilated to

a "possession". The applicant also claims that the requirement of the

general interest is not satisfied by the 1992 Social Contributions and

Benefits Act as it only takes into account the occupational or personal

pensioner`s income and not any other income or capital the redundant

employee might receive.

The applicant also complains under Article 14 of the Convention

that female employees are forced to take retirement at the age of 55

while male employees only have to accept early retirement at the age

of 60. She states that had she realised that she would not be entitled

to unemployment benefit between the ages of 55 and 60, she would have

preferred to continue in employment until the age of 60.

THE LAW

1. The applicant complains under Article 1 of Protocol No. 1 (P1-1)

that she was deprived of the unemployment benefit to which she was

entitled after having contributed to the national insurance fund for

25 years. She also claims that the legislation on the basis of which

she was deprived of her right was not in accordance with the general

interest as it did not take into account other forms of capital or

income redundant employees might have received and has therefore put

them in a better position.

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"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 Commission recalls that in the case of Gaygusuz (Eur. Court

HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV,

No. 14) the European Court of Human Rights found that a claim to a

social benefit funded at least in part by contributions was a

"pecuniary right" for the purposes of Article 1 of Protocol No. 1

(P1-1). The provision was therefore applicable. The position in the

present case is similar: the applicant contributed over a number of

years to the national insurance fund, and was thereby entitled to claim

unemployment benefit. Her claim was therefore a "pecuniary right". The

Commission must next determine whether the requirements of Article 1

of Protocol No. 1 (P1-1) have been complied with in the present case.

The Commission recalls that even where Article 1 (Art. 1)

guarantees the right to derive benefit from a benefits system, it does

not guarantee a specific amount of payment (see, for example, No.

10671/83, Dec. 4.3.85, D.R. 42, p. 229 at p. 232 with further

references).

In the present case, the applicant was entitled to apply for

unemployment benefit as she had made the requisite contributions and

had been made redundant. She was refused payments on the ground that,

as provided for by the relevant rules, she was in receipt of an

occupational pension which exceeded the amount of the benefit she would

otherwise have received. Her entitlement was not to unemployment

benefit of a fixed amount, but to make a claim for unemployment benefit

which would be determined in accordance with the rules in force at the

time.

The Commission considers that the "means-testing" of social

welfare benefits cannot of itself be contrary to Article 1 of

Protocol No. 1 (P1-1) of the Convention. The aim of social welfare

benefits is to provide those in need with financial support, and means-

testing is no more than a method of assessing need.

Moreover, the introduction in 1992 of a form of means-testing

cannot be said to be contrary to Article 14 (Art. 14) of the Convention

either, as it is in the nature of social welfare benefits that the

calculation of the amounts to be paid varies from time to time in

accordance with the economic and social conditions (see Müller v.

Austria, No. 5849/72, Comm. Report 1.10.75, D.R. 3, p. 25 at p. 32,

para. 31).

The Commission does not accept the applicant's contention that

there was no general or public interest for the means-testing because

it was only applied to recipients of occupational pensions: first, the

question in connection with Article 1 of Protocol No. 1 (P1-1) is

whether there was a general or public interest for the change in the

way the applicant's entitlement to unemployment benefit was calculated,

and there clearly was; secondly, States enjoy a wide discretion in

determining the general interest for a particular type of social

welfare benefit, and thirdly, the Section 30 (3) 1992 Act does make

provision for the possibility of Regulations to bring into account lump

sums or other benefits.

Having regard to the above considerations, the Commission finds

that this part of the application is manifestly ill-founded, within the

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

2. The applicant also alleges violation of Article 14 of the

Convention taken in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1). She claims that she was discriminated against in

comparison to men, who cannot be required to take compulsory retirement

at 55, but only at 60.

Article 14 (Art. 14) of the Convention provides as follows:

"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 Commission notes that this complaint relates to the

applicant's redundancy, or compulsory retirement, rather than to

questions of unemployment benefit. In the absence of any domestic

remedies to exhaust, and assuming that the State is responsible for

matters complained of, the Commission finds that, in accordance with

its case-law, the six months' period in Article 26 (Art. 26) of the

Convention runs in respect of this complaint from the date of the

redundancy, that is, 30 June 1994 (see No. 7379/76, Dec. 10.12.76, D.R.

8, p. 211).

The application, however, was introduced only on 11 December

1996, that is, more than six months after the date of the redundancy.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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NAHON v. THE UNITED KINGDOM

NAHON v. THE UNITED KINGDOM

LEXI