FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61604/00 and 8 others by Ian E. OLIVER and Others against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 4 November 2003 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above applications,

Having regard to the partial decisions of 12 March and 30 April 2003,

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 cases

See attached table.

B. Relevant domestic law and practice

Under United Kingdom law, certain social security benefits are paid for out of the National Insurance Fund. At the material time, Section 1 of the Social Security and Benefits Act 1992 (“the 1992 Act”) provided that the funds required for paying such benefits, including Widow’s Payment, Widowed Mother’s Allowance, and Widow’s Pension, were to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament. Male and female earners were (and are) obliged to pay the same social security contributions in accordance with their status as employed earners or self-employed earners.

1. Widow’s Payment

Under Section 36 of the 1992 Act, a woman who had been widowed was entitled to a widow’s payment (at the material time, a lump sum payment of 1,000 pounds sterling (GBP) if:

(i) she was under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension;

(ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act.

2. Widowed Mother’s Allowance

Under Section 37 of the 1992 Act, in so far as relevant, a woman who had been widowed (and who had not remarried) was entitled to a mother’s allowance on certain conditions, the following being the relevant conditions to the circumstances of the present cases:

(i) her husband satisfied the contribution conditions set out in a Schedule to the Act; and

(ii) she was entitled to receive child benefit in relation to a son or daughter of herself and her late husband.

3. Widow’s Pension

Under Section 38 of the 1992 Act, a woman who had been widowed (and who had not remarried) was entitled to a widow’s pension if:

(i) her husband satisfied the contribution conditions set out in a Schedule to the Act; and

(ii) at the date of her husband’s death she was over the age of 45 but under the age of 65; or

(iii) she ceased to be entitled to a widowed mother’s allowance at the time when she was over the age of 45 but under the age of 65.

4. Time-limit for applications for benefits

For the period up to 7 April 1997, the time-limits for claiming widow’s payment and widowed mother’s allowance were set out in the Social Security (Claims and Payments) Regulations 1987 (“the 1987 Regulations”), regulation 19 of which provided:

“(6) The prescribed time for claiming benefits not specified in column (1) of Schedule 4 shall be – ...

(b) twelve months in the case of ... widow’s benefit ...

(7) The periods of six and twelve months prescribed by paragraph (6) are calculated from any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.”

As of 7 April 1997, regulation 19 was amended so as to read:

“(2) The prescribed time for claiming the benefits specified in paragraph (3) is three months beginning on the day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.

(3) The benefits to which paragraph (2) applies are – ...

(g) widow’s benefit; ... ”

The time-limits set out in the amended version of regulation 19 applied to all widows’ benefits claims made as of 7 April 1987, regardless of the date of bereavement.

In addition, section 1(2) of the Social Security Administration Act 1992 provides, in relation to claims for Widow’s Payment:

“Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it –

(a) if the benefit is a widow’s payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made ... ”

5. Bereavement Tax Allowance

Section 262(1) of the Income and Corporation Taxes Act 1988 provided:

“Where a married man whose wife is living with him dies, his widow shall be entitled –

(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year, and

(b) (unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year.”

6. The Welfare Reform and Pensions Act 1999

The Welfare Reform and Pensions Act (“the 1999 Act”) introduced two new social security benefits, Widowed Parent’s Allowance and Bereavement Allowance. The Widowed Parent’s Allowance replaced the Widowed Mother’s Allowance. The Bereavement Allowance replaced the Widow’s Pension. Both are payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduced a new social security payment, called a Bereavement Payment, payable both to men and women in place of the Widow’s Payment.

The relevant parts of the 1999 Act entered into force on 9 April 2001 and allow any man whose wife dies before, on or after that date, or any woman whose husband dies on or after that date, to apply for Widowed Parent’s Allowance. It also allows any man whose wife dies on or after that date to apply for Bereavement Payment or Bereavement Allowance in exactly the same way as a woman whose husband dies on or after that date.

The 1999 Act preserves the entitlements of women under the 1992 Act whose husbands died before 9 April 2001. They will thus continue to be entitled to the Widow’s Payment, Widowed Mother’s Allowance and Widow’s Pension where the relevant qualifying conditions are met.

COMPLAINTS

The applicants complain that British social security and/or tax legislation discriminates against them 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 applicants in applications nos. 66293/01, 67120/01, 68056/01 and 68621/01 also invoke Article 13 of the Convention.

THE LAW

The applicants in applications nos. 61604/00, 61956/00 68452/01, and 12828/02 complain that the lack of provision for widowers’ benefits under British social security legislation discriminates against them 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 applicants in applications nos. 66293/01, 67120/01 and 12895/02 make the same complaint in respect of lack of provision for bereavement tax allowance for men under British tax legislation. The applicants in applications nos. 68056/01 and 68621/01 make the same complaint in respect of lack of provision of both widowers’ benefits and bereavement tax allowance. Some of the applicants also invoke Article 13.

Article 14 of the Convention states:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 8 of the Convention provides (as relevant):

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ...”

Article 1 of Protocol No. 1 states:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Widow’s Payment and Widowed Mother’s Allowance

The applicants in applications nos. 61956/00 and 68056/01 complain about non-payment of widow’s payment and widowed mother’s allowance, the latter from the date of bereavement. The applicants in applications nos. 61604/00, 68452/01, 68621/01 and 12828/02 complain about non-payment of widowed mother’s allowance from the date of their respective claims, as set out at column 5 of the attached table. The Court notes that the Government do not contest the admissibility of the above applicants’ complaints.

The Court considers that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B. Bereavement Tax Allowance

The Court notes that the Government do not make any observations as to the admissibility of the claims by the applicants in applications nos. 66293/01, 67120/01, 68621/01 and 12895/02 about non-payment of the allowance against income tax which would have been payable to women in their situation. The Court considers that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

The Government contest the admissibility of the claim by the applicant in application no. 68056/01, as he did not make a claim for the tax allowance about which he complained and so could not claim to be a victim of discrimination for the purposes of the Convention. The applicant concedes that the claim is inadmissible. That part of his application must therefore be declared inadmissible as manifestly ill-founded under Article 35 §§ 3 and 4.

C. Widow’s Pension – possible future claims

The applicants in applications nos. 61604/00, 61956/00, 68056/01, 68452/01 and 68621/01 complain that similarly situated women would at some point in the future become entitled to a widow’s pension. The Government contest the admissibility of the claims insofar as they relate to future non- entitlement to widow’s pension. Following the Court’s judgment in Willis v. the United Kingdom (no. 36042/97, ECHR 2002-IV), they observe that even if the applicants were women and the discrimination of which they complain was thus removed, they would not qualify for a widow’s pension under the conditions set out in the 1992 Act for some years hence and might never qualify due to the effect of other statutory conditions. They submit that the complaints are in that regard purely hypothetical and should be declared inadmissible. None of the applicants have made submissions in support of their possible future claims for widow’s pension in response to the Government’s observations.

The Court recalls the comments of the Court in the above mentioned Willis case (§ 50) that,

“... since the applicant has not been treated differently from a woman in an analogous situation, no issue of discrimination contrary to Article 14 arises as regards entitlement to a Widow’s Pension on the facts of this case”,

and finds that insofar as the applicants complaints relate to future, hypothetical claims for a widow’s pension, they are indistinguishable from that of the applicant in the Willis case. That part of each application must therefore be declared inadmissible as manifestly ill-founded, under Article 35 §§ 3 and 4.

D. Complaints under Article 13

The applicants in applications nos. 66293/01, 67120/01, 68056/01 and 68621/01 also invoke Article 13 of the Convention. Neither of the parties made further submissions as to the admissibility of these complaints. The Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see, for example, Willis v. the United Kingdom , no. 36042/97, § 62, ECHR 2002-IV). It follows that this aspect of the applications concerned is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the complaint of the applicant in application no. 68056/01 about non-payment of bereavement tax allowance;

Declares inadmissible the complaints of the applicants insofar as they relate to possible future claims for widow’s pension;

Declares inadmissible the complaints in respect of Article 13 of the Convention;

Declares the remainder of the applications admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää Registrar President

NAME OF APPLICANT

APPLICATION

DATE OF

DATE OF

DATE OF CLAIM

CLAIM FOR

CLAIM FOR BEREAVEMENT

NO

INTRODUCTION

WIFE’S DEATH

WIDOWS’ BENEFITS

TAX ALLOWANCE

Ian OLIVER

61604/00

31/05/00

22/04/94

14/05/00

Yes

No

David GREENHALGH

61956/00

03/10/00

10/11/99

01/12/99

Yes

No

Roger CELIA

66293/01

16/10/00

30/01/97

12/09/00

No

Yes

Clifford NORBURY

67120/01

16/10/00

06/04/97

12/09/00

No

Yes

Patrick GAMBLE

68056/01

04/01/01

13/06/00

10/07/00

Yes

Yes

Colin BRITTEN

68452/01

26/02/01

07/04/03

12/05/00

Yes

No

Stewart SINCLAIR

68621/01

28/11/00

09/11/94

18/05/00

Yes

Yes

John ROBERTSON

12828/02

01/03/00

28/01/97

05/06/00

Yes

No

William CRILLY

12895/02

26/09/00

10/03/97

24/02/00

No

Yes

ANNEX