FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60525/00 by Steven CORCORAN and 16 others against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 26 August 2003 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr M. Fischbach, 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 decision of 4 December 2001,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

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 GBP 1,000) 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 circumstance 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.

At the material time, the widowed mother's allowance amounted to approximately GBP72.50 per week, with an extra GBP 9.70 per week in respect of the eldest eligible child, and a further GBP 11.35 per week in respect of other children.

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.

7. Northern Ireland

Precise equivalents of all of the above provisions appear in Northern Ireland legislation.

COMPLAINT

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 LAW

The applicants in applications nos. 60525/00, 60933/00, 60937/00, 61038/00, 61949/00, 63464/00, 63469/00, 63473/00, 63474/00, 63645/00 and 63702/00 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. 62776/00, 63388/00, 63584/00, 64735/01 and 65723/01 make the same complaint in respect of lack of provision for bereavement tax allowance for men under British tax legislation. The applicant in application no. 63470/00 makes the same complaint in respect of lack of provision of both widowers' benefits and bereavement tax allowance.

Article 14 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 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.”

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

The applicants in applications nos. 60525/00, 61038/00, 63464/00, 63469/00, 63470/00, 63474/00, 63645/00 and 63702/00 complain about non-payment of widow's payment and widowed mother's allowance from the date of bereavement. The applicant in application no. 61949/00 complains only in respect of widow's payment. The Court notes that the Government do not contest the admissibility of the above applicants' claims. 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.

1. Application no. 60937/00

The applicant in application no. 60937/00 complains about non-payment of widow's payment and widowed mother's allowance from the date of bereavement.

The Government do not contest the admissibility of the claim insofar as it relates to widow's payment. They submit however, that the applicant would not be any better off financially if he were paid the other benefit in respect of which he claimed and to which a similarly situated woman would be entitled. In other words, any benefit paid would be offset by benefits he already receives. The Government rely on the case of Bland v the United Kingdom ((dec.), no. 52301/99, 19 February 2002, unreported). They submit that, in respect of non-payment of widowed mother's allowance, the applicant cannot be said to be a victim for the purposes of the Convention. The applicant has not made any submissions in response to the Government's observations. However, the Court notes that the applicant in the admissible case of Runkee v. the United Kingdom , ((dec.), no. 42949/98, 4 June 2002, unreported) was in a similar position. He had submitted that if his financial circumstances were to improve, he would stand to lose the means tested benefits of which he was in receipt. Were he to receive a widow's pension however, which is not means tested, his position would be protected, and he would be able to increase his income without fear of losing his benefit entitlement. The applicant in Runkee maintained that accordingly he could still claim to be a victim for the purposes of the Convention. The Court finds nothing to distinguish the position of the present applicant from that of the applicant in the Runkee case on that basis. Accordingly, the Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Applications nos. 60933/00 and 63473/00

The applicants complain about non-payment of widow's payment and widowed mother's allowance from the date of their wives' deaths. The Government do not contest the claims by the applicants insofar as they relate to widowed mother's allowance. They do contest the admissibility of the applications to the extent that they relate to claims for widow's payment, observing that neither applicant made their claim within the required three months of their wife's death.

The applicant in application no. 60933/00 observed that although his formal application for benefits was made more than three months after his wife's death, the benefits agency in fact treated his application as having been made within the prescribed time period. The applicant has provided correspondence from the benefits agency to substantiate his claim and in those circumstances the Court considers that it should also treat the claim as having been made within three months of his wife's death. Accordingly, the Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

The applicant in application no. 63473/00 applied for widow's benefits in January 1998, and was advised by letter dated 15 January 1998 that no legislation existed which provided an equivalent to widow's benefits payable to widowers. The applicant continued to correspond with the Benefits Agency and requested that his papers be retained, pending developments in this Court. The Benefits Agency agreed to his request. The applicant wrote to the Benefits Agency again on 1 May 2000 requesting that his claim be 're-opened' and he was advised on 9 May 2000 that he was not entitled to widow's benefits. The Government observed that in respect of his 'first claim', refused in January 1998, his application to this Court in September 2000 was not introduced within six months of the final domestic decision. His later 'claim' in May 2000 was not made within the required three months and was also therefore inadmissible as regards widow's payment.

The applicant refuted the Government's submission and observed that the Benefits Agency had specifically acceded to his request to retain the details of his original claim in 1998. His correspondence in May 2000 was not a new claim, but a continued pursuit of the initial claim, which had been made within the required time limit. His claim was introduced to this Court within six months of the final refusal of benefits in May 2000.

The Court finds the applicant's submissions persuasive and considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Bereavement Tax Allowance

The Court notes that the Government do not contest the admissibility of the claims by the applicants in applications nos. 62776/00, 63388/00, 63584/00, 64735/01 and 65723/01 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.

In respect of the applicant in application no. 63470/00, the Government submitted, and the applicant conceded, that the tax allowance had been abolished by the time he made his claim to the Inland Revenue and he could not therefore claim to be a victim for the purposes of the Convention. 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. 60525/00, 60933/00, 60937/00, 61038/00, 63464/00, 63469/00, 63470/00, 63473/00, 63474/00, 63645/00 and 63702/00 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.

For these reasons, the Court unanimously

Declares inadmissible the complaint of the applicant in application no. 63470/00 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 the remainder of the applications admissible, without prejudging the merits of the cases.

Michael O'Boyle Matti Pellonpää Registrar President

ANNEX

Application no. 60525/00 and 16 others

CORCORAN and 16 others v. the United Kingdom

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

Steven CORCORAN

60525/00

17/07/2000

23/08/1999

oct-99

YES

NO

Leslie COLE

60933/00

04/09/2000

25/02/1999

04/1999 (enquiry) then 08/11/1999

YES

NO

Louis O'HARE

60937/00

31/08/2000

10/02/2000

10/02/2000

YES

NO

Philip HADRELL

61038/00

28/08/2000

17/05/1999

11/06/1999

YES

NO

Sean McNAMEE

61949/00

05/10/2000

May 2000

06/00

YES (widow's payment only)

NO

Richard CROSS

62776/00

09/10/2000

04/06/1995

11/09/2000

NO

YES

Gerald DOBB

63388/00

09/10/2000

13/02/1999

12/09/2000

NO

YES

Andrew BAKER

63464/00

28/09/2000

08/07/2000

01/09/2000

YES

NO

Alan GRAHAM

63469/00

29/09/2000

06/07/2000

14/08/2000

YES

NO

Neville HANCOCK

63470/00

26/09/2000

07/04/2000

23/05/2000

YES

YES

Malcolm MAWER

63473/00

28/09/2000

11/12/1997

01/1998

YES

NO

Philip MORRISON

63474/00

29/09/2000

11/04/2000

09/06/2000

YES

NO

Alan KETTLE

63584/00

02/10/2000

04/09/1996

09/09/2000

NO

YES

David MANN

63645/00

29/09/2000

03/07/2000

21/08/2000

YES

NO

I.P. NORTHWOOD

63702/00

29/09/2000

04/08/2000

15/09/2000

YES

NO

John HIGHAM

64735/01

24/10/2000

05/09/1997

19/07/2000

NO

YES

John GOODWIN

65723/01

12/12/2000

23/03/1999

16/09/2000

NO

YES