FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36534/04 by Bryn PETERSON against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 10 February 2009 as a Chamber composed of:

Lech Garlicki , President , Nicolas Bratza , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Ledi Bianku , Mihai Poalelungi , judges , and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 1 October 2004 ,

Having regard to the decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the formal declarations accept ing a friendly settlement of part of the case ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bryn Peterson, is a Briti sh national who was born in 1947 and lives in South Wales . He was un represented before the Court . The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant ’ s wife died on 31 May 1999 leaving two children born in 1989 and 1991. His claim for widows ’ benefits was made on 15 December 2000 and was rejected on 28 June 2001 on the grou nd that he was not entitled to w idow s ’ b enefit s because he was not a woman. This decision was confirmed by an appeal tribunal on 6 July 2004. T he applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom l aw .

B. Relevant domestic law

The domestic law relevant to this application is set out in Willis v. the United Kingdom , no. 36042/97, §§ 14-26, ECHR 2002-IV and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007.

COMPLAINTS

The applicant complained that British social security legislation discriminated against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

THE LAW

By a letter of 11 May 2005 the respondent Government informed the Court that the House of Lords had decided, in relation to the claims for Widowed Mother ’ s Allowance (“WMA”) and Widow ’ s Payment (“WPt”), that there was in principle no objective justification at the relevant time for not paying these benefits to widowers as well as widows, but that the Government had a defence under section 6 of the Human Rights Act 1998 (the HRA). It noted that, in view of this, the multitude of cases before the Court and the fact that the HRA defence was only applicable in the domestic arena, the Government were prepared, in principle, to settle all claims made by widowers against the United Kingdom arising out of the arrangements applicable prior to April 2001 for the payment of WMA and WPt.

By a letter of 11 October 2008 the applicant notified the Court that he had been offered GBP 4,307.82 in respect of his claim for WMA including costs, and that he had accepted payment. By a letter of 8 December 2008 the Government informed the Court that the applicant had received the monies due. On 25 September 2008 and again on 7 January 2009 the applicant was sent a letter by the Registry stating that the Court would consider striking the case out of its list in respect of the claims that had been settled.

The Court takes note of the friendly settlement reached between the parties in respect of WMA . It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court ).

Accordingly, this part of the application should be struck out of the list.

As regards the claim for WPt, the Court recalls that a widow was not automatically entitled to survivors ’ benefits, but had to claim them from the relevant authority. After1997, a widow had to make a claim for WPt within three months of her husband ’ s death.

The Court considers, as it held in Cornwell v. the United Kingdom (no. 36578/97, (dec.), 11 May 1999) , that unless or until a man has made a claim to the domestic authorities for bereavement benefits, he cannot be regarded as a “victim” of the alleged discrimination involved in the refusal to pay such benefits, because a woman in the same position would not automatically be entitled to widow s ’ benefits until she had made a claim ( see also White v. the United Kingdom , no. 53134/99 (dec.), 7 June 2001, where the Court clarified that, as long as an applicant had made clear to the authorities his intention to claim benefits, the precise form in which he did so was not important). Similarly, a man who failed to apply within the time-limits as they applied to a woman claimant could not, in most cases, claim to be a victim of discrimination, since a woman in the same position would not have been entitled to the benefit in question (see Rogan v. the United Kingdom , no. 57946/00, (dec.), 8 September 2001).

Consequently, the applicant ’ s claim for WPt made in 2000 had been made out of time. Thus, the applicant cannot claim to have been a victim of a violation of his rights under the Convention and Protocol No. 1 , and the complaint in respect of WPt 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 .

Regarding the claim for Widow ’ s Pension (“WP”) the Court held in its lead judgment regarding WP that at its origin, and until its abolition in respect of women whose spouses died after 9 April 2001, WP was intended to correct “factual inequalities” between older widows, as a group, and the rest of the population and that this difference in treatment was reasonably and objectively justified. Moreover, the Court considered that the United Kingdom could not be criticised for not having abolished WP earlier and that it was not unreasonable of the legislature to decide to introduce the reform slowly (see Runkee and White , cited above, §§ 40-41). The Court, consequently, considering it was not necessary to examine separately the complaint in respect of Article 8, did not find a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in respect of the non-payment to the applicants of WP or equivalent ( ibid § 4 2).

Consequently, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In conclusion, therefore, the Court strikes out of its list the applicant ’ s complaint as regards Widowed Mother ’ s Allowance and declares inadmissible the applicant ’ s complaints as regards Widow ’ s Payment and Widow ’ s Pension.

For these reasons, the Court unanimously

Decides to strike out of its list of cases the applicant ’ s complaint about non-entitlement to a Widowed Mother ’ s Allowance;

Declares inadmissible the remainder of the application.

Fatoş Aracı Lech Garlicki Deputy Registrar President