FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications no. 28044/02 and 8 others by Thomas MURPHY 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 lodged on various dates between 1 March 2001 and 15 July 2003,

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. By Section 1 of the 1992 Act, the funds required for paying such benefits, including widowed mother's allowance and widow's pension, are 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 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 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, a woman who had been widowed (and who had not remarried) was entitled to a mother's allowance on certain conditions, including:

(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

As of 7 April 1997, regulation 19 of the Social Security (Claims and Payments) Regulations 1987 amended the previous time limit of 12 months so as to provide:

“(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 1997, 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. 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, but is only payable for a maximum of fifty two weeks. 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 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 LAW

1. The applicants complain that the lack of provision for widowers' benefits under British social security legislation discriminates against them on grounds of sex. The applicants complain of a continuing violation from their wives' deaths on the dates set out at column 4 of the table attached.

The applicants invoke Article 14 of the Convention in conjunction with Article 8 and Article 1 of Protocol No. 1.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this 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 provides:

“1. 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.

2. 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.”

2. The applicants claim that, had they been women and had their wives been men, they would have been aware of their entitlement to widows' benefits in the event of their death. They claim that this entitlement would have included widow's payment.

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, Buckley v. the United Kingdom , judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 128, §§ 56-59, and Cornwell v. the United Kingdom (dec.), application no. 36578/97, 11 May 1999, unreported).

In the present cases, until each applicant applied to his local benefits office for widows' benefits, or made clear his intention to claim those benefits, he could not claim to be a victim of discrimination, since a woman in the same position who had made no claim would have had no entitlement to widows' benefits under domestic law. The Court notes that since 7 April 1997, a three-month time-limit, commencing from the date of entitlement, has applied to claims for widows' benefits by women. A widow who does not claim a widow's payment (now, under the 1999 Act, a bereavement payment) within three months of her husband's death, loses all entitlement to this benefit. Widowed mother's allowance and widow's pension (and their equivalents under the 1999 Act) are continuing benefits which can be claimed at any time, assuming entitlement, but a claim made outside the three-month time-limit cannot be back-dated to the date of bereavement.

3. The applicant in application no. 42709/02, as can be seen from the table, applied for widows' benefits within the relevant time-limit from his wife's death. This applicant can, therefore, claim to be a victim of discrimination from the date of bereavement, since a woman in a comparable position would have been able to claim a widow's payment and have her claim for the other benefits back-dated. The Court finds that issues arise meriting communication to the respondent Government pursuant to Rule 54 § 3 (b) of the Rules of Court. It therefore adjourns this application in its entirety.

4. The applicants in applications nos. 28095/02, 28096/02, 42705/02 and 23244/03 made enquiries with the relevant benefits office or made claims for widows' benefits around the time of their wives' deaths, as set out at column 5 of the table ('the initial claim'). They made subsequent claims for benefit on the date shown in column 6 (the 'relevant claim'). However, as regards their initial claims, the applicants were in each case advised that there were no benefits for widowers equivalent to those available for widows. In each case no further action was taken by the applicant at that time and the advice given was the final domestic decision within the meaning of Article 35 § 1 of the Convention. In each case this decision was clearly more than six months before the date on which the application was submitted to the Court. It follows that the applications, so far as they relate to these initial claims, have been submitted too late and must be rejected, in accordance with Article 35 § 4 of the Convention (see Gardner and 3 others v. the United Kingdom (dec.), no. 12937/02, 30 April 2002).

5. None of the applicants (save the applicant in application no. 42709/02) can be said to have been directly affected by the discrimination of which they complain during the period between their wives' deaths, on the dates set out at column 4 of the table attached, and the dates on which they lodged their relevant claims for widows' benefits, as set out at column 6 of the table. It follows that for the period between their wives' deaths and the dates on which they lodged their relevant claims for widows' benefits these applicants cannot claim to have been victims of a violation of their rights under the Convention and First Protocol, and that the applications, insofar as they relate to non-entitlement to widows' benefits during this period, are 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.

6. The Court considers that it cannot, on the basis of the file, determine the admissibility of the remainder of each application, namely the complaints of discrimination for the period after the applicant made a relevant claim (as set out in column six of the table), and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of them to the respondent Government.

For these reasons, the Court unanimously

Decides in respect of application no. 42709/02, where the applicant complains about discrimination in relation to widows' benefits and made a claim for benefits within the applicable time-limit , to adjourn the examination of his complaints in their entirety;

Decides in respect of the remaining applications, to adjourn the examination of the applicants' complaints in connection with their claims for widows' benefits relating to discrimination suffered by them during the period after the dates on which they lodged their relevant claims for widows' benefits, set out in column 6 of the table;

Declares the remainder of the applications inadmissible.

Michael O'Boyle Matti Pellonpää Registrar President

ANNEX

Application no. 28044/02 and 8 others

MURPHY and Others v. the United Kingdom

1. Application no.

2. Name of Applicant

3. Date of Introduction

4. Date of Bereavement

5. Date of Initial Benefit Claim (if applicable)

6. Date of Relevant Claim

28044/02

Thomas MURPHY

01/03/01

01/02/96

n/a

20/09/00

28093/02

Gerald TOWNLEY

01/03/01

05/02/91

n/a

22/09/00

28095/02

Dennis TWOMEY

01/03/01

10/12/99

02/00

02/10/00

28096/02

William TYMAN

01/03/01

25/12/89

1989

13/09/00

42697/02

Norman MAUDSLEY

18/03/02

06/08/00

n/a

30/07/01

42705/02

Peter STAFFORD

18/03/02

12/05/96

1996 and 10/97

02/08/01

42709/02

John TURNER

18/03/02

03/02/01

n/a

01/05/01

42715/02

Anthony PEAL

08/08/01

24/01/00

n/a

06/01

23244/03

Neil INGRAM

15/07/03

26/08/80

1980 and 1990

09/02