FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 27973/02, 27999/02, 28038/02 and 28100/02 by John CLARKE and 3 others against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 14 October 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 , Ms F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above applications, all lodged on 1 March 2001,

Having regard to the Committee decision of 3 June 2003,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

See attached table.

B. Relevant domestic law

The relevant domestic law is set out in various decisions in respect of similar applications, see, for example, Dodds and others v. the United Kingdom (( dec .), no. 59314/02, 8 April 2003).

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

The applicants complain that the lack of provision for widowers’ benefits under British social security legislation discriminates against them on grounds of sex.

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.”

1. The Court recalls that in Cornwell v. the United Kingdom , (( dec .), no. 36578/97, 11 May 1999), the Court decided that, until he has actually made a claim for widows’ benefits, a man cannot claim to be a victim of discrimination, since a woman who is widowed does not automatically receive any widows’ benefits and must first make a claim.

In the present cases, until each applicant applied to his local benefits office for widows’ benefits, or made clear his wish 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 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 Welfare Reform and Pensions Act 1999) 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. Before 7 April 1997 the time-limit was 12 months.

2. The applicants all made enquiries with the Benefits Agency around the time of their wives’ deaths and were advised that no benefits equivalent to those payable to widows were available to widowers. In each case the advice given constituted the “final domestic decision” for the purposes of Article 35 of the Convention. In each case this decision, on the date set out at column 5 of the attached table, was clearly more than six months before the date on which the application was submitted to the Court. The applications so far as they relate to those initial claims for benefits must therefore be declared inadmissible as being out of time, in accordance with Article 35 § 4 of the Convention (see Gardner and others v. the United Kingdom , ( dec .), no. 12937/02, 30 April 2002).

3. The applicants all made later claims for benefits (“the relevant claim”) on the dates set out at column 6 of the attached table, in respect of which their applications were introduced to the Court within six months. However, to the extent that the applicants complain about non-payment of widow’s payment, their relevant claims were made after the expiry of the domestic time limit and would have been disallowed had they been widows. Furthermore, the Court notes that under Section 38 of the Social Security Contributions and Benefits Act 1992 Act, a woman who was widowed (and who had not remarried) was entitled to a widow’s pension if, inter alia , at the date of her husband’s death she was over the age of 45 but under the age of 65, or 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.

The applicants in applications nos. 27973/02, 27999/02 and 28038/02 were all aged over 65 at the date of their relevant claim for widows’ benefits. The applicant in application no. 28100/02 was under 45 at the time of his wife’s death. None of the applicants had dependent children and, even had they been women, they would not have been entitled either to a widowed mother’s allowance or a widow’s pension. It follows that none of the applicants can claim to be victims of discrimination for the purposes of the Convention and their applications must be rejected as inadmissible pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the applications inadmissible.

Françoise Elens-Passos Matti Pellonpää Deputy Registrar President

ANNEX

1. Name of applicant

2. Application no.

3. Date of introduction

4. Date of bereavement

5. Date of initial benefit claim

6. Date of relevant benefit claim

John CLARKE

27973/02

01/03/01

21/02/78

1978

11/10/00

Alan GREEN

27999/02

01/03/01

07/05/93

1993/4

21/09/00

Thomas McLOUGHLIN

28038/02

01/03/01

19/07/88

1988

18/09/00

Ellis WAINWRIGHT

28100/02

01/03/01

12/08/93

1993

18/09/00