FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no s . 65741/01, 71172/01, 28087/02, 35278/02 by Michael BARRY 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. 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 decision of 22 August 2005, under Article 29 § 3 of the Convention, in applications nos. 28087/02 and 38278/02, to consider the admissibility and merits together and the decision of 10 September 2002 joining applications nos. 65741/01 and 28087/02,

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. Michael Barry, no. 65741/01, lodged on 15 December 2000

The applicant is a British national who was born on 20 August 1941 and who lives in Epsom. 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 12 October 1975 . There were two children of the marriage, born on 23 January 1972 and 22 June 1973 . In October 1975 the applicant asked the Department of Health and Social Security for financial assistance in raising the children, but was refused.

The applicant remarried in 1988. On 1 July 2000 , he applied for backdated widows ’ benefits. On 20 November 2000 he was informed that his claim had been rejected by the Appeal Tribunal.

2. James Robinson, no. 71172/01 , lodged on 23 April 2001

The applicant is a British national who was born on 6 December 1935 and who lives in Standish, Lancashire . He is not represented before the Court. The Government are again represented by Mr C. Whomersley .

The applicant was widowed on 26 April 1994 .

On 13 December 2000 he made an application for survivors ’ benefits, and was informed in January 2001 that the Appeal Tribunal had rejected his claim. He made a further appeal on 20 March 2001 but was again rejected.

3. Brian Taylor , no. 280 8 7/02, lodged on 29 May 2001

The applicant is a British national who was born on 30 July 1965 and who lives in Skelmersdale , Lancashire . 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 27 January 1993 . O n 14 November 2000 he made an application for survivors ’ benefits, to which he received no response.

4. Ronald Herbert , no. 35278/02 , lodged on 12 September 2002

The applicant is a British national who was born on 11 December 1935 and who lives in Barnsley . He is not represented before the Court . The Government are again represented by Mr C. Whomersley .

The applicant was widowed o n 18 August 1999 . 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.

In March 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 17 July 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 widows ’ benefits.

THE LAW

A. The parties ’ submissions

1 . Mr Barry

The Government submit that by the date of his claim in 2000 the applicant had remarried. A woman in his position would not have been entitled to widows ’ benefits, and the claim was, therefore, inadmissible.

The applicant emphasises that he originally claimed benefits in 1975, and now sought compensation for the stress, deprivation and hardship he had suffered in raising his children without assistance.

2. Mr Robinson

The Government point out that the applicant was widowed in 19 94 , but made no claim for benefits until December 200 0 . Accordingly, any claim in respect of a Widow ’ s P ayment 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 respond s that he had not claimed the benefits earlier because no such benefits existed for men and because the scheme itself was unlawful and discriminatory.

3. Mr Taylor

The Government submit that, although the applicant was widowed in 199 3 , he did not make any request for benefits until 2000, which was outside the time-limit for a Widow ’ s Payment . There were no dependent children, and therefore no admissible claim concerning Widowed Mother ’ s Allowance.

The applicant argues 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).

4. Mr Herbert

The Government point out that the applicant was widowed in 19 99 , 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 makes no response to the Government ’ s submissions.

B. The Court ’ s assessment

The applicants 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 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 Barry ’ s complaint relating to the refusal of benefits to him in 1975 is inadmissible under the six months rule. By the time of his application in 2000, he had remarried. A woman who had remarried 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 Robinson ’ s and Mr Taylor ’ s applications for benefits in 2000 and Mr Herbert ’ s application in 2002, women in their positions would not have been entitled to survivors ’ 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 his claim, so there was no eligibility for Widowed Mother ’ s Allowance; and none of the applicants was within the age limits, at the time either of bereavement or claim, for a Widow ’ s Pension.

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 r easons, the Court unanimously

Decides to disjoin applications nos. 65741/01 and 28087/02 from the applications to which they were joined;

Decides to disapply Article 29 § 3 in respect of applications nos. 28087/02 and 35278/02 ;

Declares the application s inadmissible.

Michael O ’ Boyle J. Casadevall              Registrar              President