Lexploria

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)

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VAUGHAN v. THE UNITED KINGDOM

VAUGHAN v. THE UNITED KINGDOM

LEXI