FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no s . 77129/01, 27996/02, 28067/02 & 26083/03 by John McGILLEN and OTHERS against the United Kingdom

The European Court of Human Rights ( Fourth Section), sitting on 4 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. Å ikuta, judges ,

and Mr M. O ’ Boyle , Section Registrar ,

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

Having regard to the partial decisions of 10 September 2002 in application no. 77129/01 and of 12 November 2002 in application no. 27996/02,

Having regard to the decision of 22 August 2005 , under Article 29 § 3 of the Convention, to consider the admissibility and merits together in applications nos. 28067/02 and 26083/02,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1. John McGillen, no. 77129/01, lodged on 6 November 2001

The applicant is a British national who was born on 15 July 1949 and who lives in Stoke-on-Trent . He is not represented before the Court. The United Kingdom Government (“the Government”) are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office.

The applicant was widowed on 11 October 1989 . There were two children of the marriage, born on 13 April 1978 and 2 November 1982 . In 1997 the applicant applied for widow ’ s benefits and was refused. On 23 March 2001 he applied to the Benefits Agency for benefits equivalent to those which would have been received by a widow. He was finally refused such benefits by the Social Security Appeal Tribunal on 2 October 2001

The applicant is a British national who was born on 31 March 1945 and who lives in Birmingham . He is represented before the Court by Messrs Royds Treadwell, solicitors practising in London . The Government are again represented by Mr C. Whomersley.

The applicant was widowed on 14 January 1986 . There were two children of the marriage, born on 12 May 1978 and 10 December 1981 . On 4 April 2001 he made a formal application to Birmingham Social Security Agency for survivors ’ benefits. On 19 June 2001 , it was determined that he was not entitled because he had no dependent children.

3. Kit Sadgrove, no. 28067/02, lodged on 29 May 2001

The applicant is a British national who was born on 2 April 1955 and who lives in Surrey . He is represented before the Court by Messrs Royds Treadwell, solicitors. The Government are again represented by Mr C. Whomersley.

The applicant was widowed on 29 March 1996 . In 2000 he made an application for survivors ’ benefits, which was refused in October 2000. The applicant continued to pursue a domestic remedy and was included in the schedule of widowers who took the benefit of the decision in R. v. Secretary of State for Work and Pensions ex parte Hooper and others [2005] UKHL 29, which was decided by the House of Lords on 5 May 2005.

4. Peter James Reynolds, no. 26083/03, lodged on 8 August 2003

The applicant is a British national who was born o n 26 June 1942 and who lives in County Wexford , Republic of Ireland . He is represented before the Court by Ms D. Kennett . The Government are again represented by Mr C. Whomersley.

The applicant was widowed in April 1975, when he was 33 years old. There were two children of the marriage, born on 24 March 1967 and 26 January 1971 . Shortly after his wife ’ s death he asked the Benefits Agency if he was entitled to benefits equivalent to those received by widows, but he was informed that he was not eligible because he was a man.

On 20 August 2002 the applicant made a formal application for widows ’ benefits, to be backdated to the time of his wife ’ s death. The claim was finally refused by the Social Security Appeal Tribunal on 18 February 2003 .

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 McGillen

The Government asserted that any complaint relating to the applicant ’ s claim for benefits in 1997 was inadmissible under the six months rule. They further submitted that, at the time of his claim in 2001, a woman in his circumstances would not have been entitled to any benefits.

The applicant contended that a woman in his position would have received a Widow ’ s Payment and a Widowed Mother ’ s Allowance.

2. Mr Gleeson

The Government pointed out that the applicant was widowed in 1986, but made no claim for benefits until 2001. Accordingly, any claim in respect of a Widow ’ s Payment was out of time under domestic law. Furthermore, at the date on which the claim was made there were no children in respect of whom child benefit was payable. If he had been a woman, therefore, the applicant would not have been entitled to Widowed Mother ’ s Allowance.

The applicant responded that the Court should adopt a broad and purposive approach to the interpretation of Article 34 of the Convention in the widowers ’ cases. The position of a widower could not be compared, for the purpose of claiming benefits, with that of a widow, who was entitled to claim the benefits and was thus understandably bound by the applicable rules and time-limits. A widower, on the other hand, was already outside the system because he was not entitled to the benefit and was powerless to claim it. The applicant had not made a claim prior to 2001 as he understood that widow ’ s benefits were not available to men, and he should not be penalised for this. At the time of the bereavement there were dependent children, and his claim for Widowed Mother ’ s Allowance should be back-dated. Finally, the applicant submitted that where a violation arises out of legislation that continuously affects the exercise of a guaranteed right or freedom, the six months time limit should not apply (see the Dudgeon v. the United Kingdom judgment of 22 October 2001 , Series A no. 45).

3 . Mr Sadgrove

The Government submitted that, although the applicant was widowed in 1996, he did not appear to have made any request for benefits until 2000, which was outside the time-limit for a Widow ’ s Payment (which seemed to be the only widow ’ s benefit claimed by the applicant). In any event, if the final decision was in October 2000, the application to the Court lodged on 29 May 2001 was inadmissible under the six months rule.

The applicant, who was represented by the same solicitors, submitted similar arguments to those advanced by Mr Gleeson (see above).

4. Mr Reynolds

The Government pointed out that the applicant was widowed in 1975, but made no claim for benefits until 2002. His claim for Widow ’ s Payment was therefore out of time under domestic law. He was not, moreover, entitled to the equivalent of a Widowed Mother ’ s Allowance, since by the time of his claim there were no dependent children.

The applicant responded that he had first attempted to claim the benefits shortly after his wife ’ s death, and had only been encouraged to reapply when he heard of the cases being brought by widowers before the European Court of Human Rights and the domestic courts. Although there were no dependent children at the time of the claim in 2002, he wished to be compensated for the years he spent as a single parent without the assistance of Widowed Mother ’ s Allowance.

B. The Court ’ s assessment

The applicants Mr Gleeson and Mr Sadgrove argue, in essence, that men whose wives died before 6 April 2000 were and are subject to a continuing violation of their rights under Article 14 of the Convention and Article 1 of Protocol No. 1 taken together. Given this continuing violation, and the fact that any attempt by a man to claim widow ’ s benefits would be bound to fail, the Court should not require them to have applied for benefits to the national authorities nor apply the six months time-limit.

In this connection, 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 unmarried, 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 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, most recently, 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 McGillen ’ s complaint relating to the refusal of benefits to him in 1997, and Mr Reynolds ’ s complaint about the failure to pay him benefits during the period 1975-2000, are inadmissible under the six months rule.

At the time of Mr McGillen ’ s and Mr Gleeson ’ s applications for benefits in 2001, Mr Sadgrove ’ s application in 2000, and Mr Reynolds ’ s application in 2002, women in their positions would not have been entitled to any benefits. Each applicant ’ s claim for a Widow ’ s Payment was inadmissible under the domestic three-month time-limit; none of the applicants had dependent children at the time of their claim, so there was no eligibility for Widowed Mother ’ s Allowance; and, since none of the applicants was aged 45-65 at the date of bereavement, no eligibility for a Widow ’ s Pension arose.

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 unanimously

Decides to disapply Article 29 § 3 in respect of applications nos. 28067/02 and 26083/03 ;

Declares the application s inadmissible.

Michael O ’ Boyle J. Casadevall Registrar              President