FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 61878/00 , 68173/01 21423/02 by Peter CAMPBELL and OTHERS against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 11 April 2006 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application s lodged on the dates set out below ,

Having regard to the partial decision of 10 September 2002 in applications nos. 61878/00 and 68173/01 and that of 12 November 2002 in application no. 21423/02 and the decision of 10 September 2002 joining applications nos. 61878/00 and 68173/01,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant s ,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1. Peter Campbell, no. 61878/00, lodged on 9 August 2000

The applicant is a British national who was born on 17 October 1941 and who lives in Westbourne. He is represented before the Court by Mr D. Ward, Pembroke Dock Citizens ’ Advice Bureau. The United Kingdom Government (“the Government”) are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office.

The applicant was widowed on 28 January 1985 . There were two children of the marriage, born in 1972 and 1974. In March 1985 the applicant asked the Department of Health and Social Security for widows ’ benefits or equivalent, but was refused.

The applicant applied again for widows ’ benefits on 21 June 2000 . On 14 July 2000 he was informed that his claim had not been considered by a decision maker and that there was, therefore, no right of appeal.

2. John Shawcross , no. 68173/01 , lodged on 6 February 2001

The applicant is a British national who was born on 29 December 1929 and who lives in Wigan . He is not represented before the Court . The Government are again represented by Mr C. Whomersley.

The applicant was widowed on 17 July 1981 .

On 19 September 2000 he made an application for survivors ’ benefits, which was finally refused by the Appeal Tribunal on 19 January 2001 .

3. Lionel Blackford , no. 21423/02 , lodged on 17 May 2002

The applicant , now deceased, wa s a British national who was born on 3 January 1933 and who lived in Coventry . He was not represented before the Court . The Government are again represented by Mr C. Whomersley.

The applicant was widowed on 3 December 1996 . O n 30 October 2001 he made an application for survivors ’ benefits, which was finally refused by the Appeal Tribunal on 17 May 2002 .

B. Relevant domestic law

The domestic law relevant to these applications is set out in Willis v. the United Kingdom , no. 36042/97, §§ 14-26, ECHR 2002-IV.

COMPLAINTS

The applicant s complain under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 that, because they were men, they were not entitled to the equivalent of widow ’ s benefits.

THE LAW

A. The parties ’ submissions

1 . Mr Campbell

The Government submit that by the date of his claim in 2000 a woman in the applicant ’ s position would not have been entitled to widow ’ s benefits.

The applicant emphasises that he originally claimed benefits in March 1985, when he was refused solely because he was a man.

2. Mr Shawcross

The Government point out that the applicant would not, if a woman, have been eligible for bereavement benefits under domestic law.

The applicant claims that the reason he did not apply earlier for the benefits was because he knew that he would not be entitled because he was a man.

3. Mr Blackford

The Government submit that the applicant was aged over 65 at the time of his claim and that a woman of that age would not have been entitled to widow ’ s benefits.

The applicant responds that he was aged 63 at the date of his wife ’ s death and did not apply earlier because he did not think he would be entitled to widow ’ s benefits.

B. The Court ’ s assessment

Mr Shawcross and Mr Blackford argue that they did not apply for widow ’ s benefits at the time of their wives ’ deaths because they knew that as men they would not be eligible. Mr Campbell did apply for benefits in 1985, but did not apply to the Court within six months of having that claim rejected.

The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Cornwell v. the United Kingdom , no. 36578/97, decision of 11 May 1999 ).

Under the legislation providing for widow ’ s benefits at the relevant time (see Willis ), a widow was not automatically entitled to survivors ’ benefits, but had to claim them from the relevant authority. Various time-limits applied: a widow had to make a claim for Widow ’ s Payment within three months of her husband ’ s death and a claim for Widowed Mother ’ s Allowance or Widow ’ s Pension could be made outside that time-limit, but would be back-dated only three months. To be eligible for Widowed Mother ’ s Allowance, a woman had to be unmarried and either pregnant by her late husband or entitled to child benefit in respect of a child of the marriage. To be eligible for a Widow ’ s Pension, a woman had to be aged between 45 and 65 at the date of her husband ’ s death and to have ceased to be eligible for a Widowed Mother ’ s Allowance. The widow was not entitled to the pension for any period after she remarried, but, subject to that, continued to be entitled until she attained the age of 65.

The Court considers, as it held in Cornwell , 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 having made a claim (but see also White v. the United Kingdom , no. 53134/99, decision of 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 women 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, decision of 8 September 2001).

Insofar as the applicants complain that they are victims of a continuing violation to which the six months rule is inapplicable, the Court recalls that the concept of a “continuing situation” refers to a state of affairs which involves continuous activities by or on the part of the State to render the applicants victims (see, for example, Skowronski v. Poland, no. 37609/97, decision of 19 March 2002). There is no such “continuing situation” here, since a widower cannot claim to be a victim of discrimination until he has applied for benefits and been refused. It has, therefore, been the Court ’ s consistent practice in such cases to hold that the six months time-limit in Article 35 § 1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits (see, for example, Barrow and Others v. the United Kingdom, nos. 68175/01, 68928/01, 69327/01, 13944/02, decision of 13 December 2005 ).

Turning to the facts of the present applications, the Court observes that Mr Campbell was aged 44 at the date of his wife ’ s death, and that he would not, on that ground alone, have been eligible for a Widow ’ s Pension. His complaint relating to the refusal of benefits to him in 1985 was declared inadmissible under the six months rule by the partial decision of 10 September 2002 . By the time of his application to the Benefits Agency in 2000, his children were over the age of sixteen and he was out of time for a Widow ’ s Payment. A woman in the applicant ’ s position would not have been entitled to widow ’ s benefits, and the applicant cannot, therefore, claim to be a victim of discriminatory treatment.

Similarly, at the time of Mr Shawcross ’ s and Mr Blackford ’ s applications for benefits in 2000, each was aged over 65 and would not have been entitled to benefits even if women.

The applicants cannot, therefore, claim to be victims of discrimination contrary to the Convention, and these applications are inadmissible under Article 34 of the Convention.

For these reasons, the Court un animously

Decides to dis join applications nos. 61878/00 and 68173/01 from each other and from the other applications to which they were joined; and

Declares the application s inadmissible.

Michael O ’ Boyle J. Casadevall Registrar              President