FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58370/00 and 11 other applications by Daniel O’CONNELL and Others against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 May 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 decision of 15 January 2002,

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 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 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.

At the material time, the widowed mother’s allowance amounted to approximately GBP 72.50 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 provided, 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 provides:

“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. Northern Ireland

Precise equivalents of all of the above provisions of primary and secondary legislation appeared 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 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. 61019/00, 63471/00 and 63476/00 make the same complaint also in respect of lack of provision for bereavement tax allowance for men under British tax legislation.

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.”

A. Widowed Mother’s Allowance

The applicants complain about non-payment of widowed mother’s allowance from the date set out at column 4 of the attached table. The Court notes that the Government do not contest the admissibility of the applications in so far as they relate to non-payment of this benefit and 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 Government submitted that the applicant in application no. 61019/00 did not make a valid application for bereavement tax allowance, and/or would not have been entitled to the allowance even if he were a woman, and/or introduced his application to the Court more than six months after the final domestic decision. The refusal to satisfy his claim was made by letter dated 8 May 1998 and his application was introduced to the Court on 22 August 2000. The Court therefore finds that the application was not introduced within six months of the final domestic decision and notes that the applicant concedes that his application is inadmissible in so far as it concerns his tax allowance claim. That aspect of his claim must therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

The Government submitted that the applicant in application no. 63471/00 either did not introduce his application within six months of the final domestic decision or did not make a valid claim for bereavement tax allowance within the domestic time limits. The applicant made a claim in 1993, shortly after his wife’s death. He made a (further) claim to the Revenue in June 2000, after the expiry of the domestic time limit. His application was introduced to the Court in September 2000. The Court notes that in respect of his initial claim, his application was not introduced within six months of the final domestic decision and that the applicant concedes that this part of his application is inadmissible. His application, in so far as it relates to his claim for bereavement tax allowance, must therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

The applicant in application no. 63476/00 made a claim for bereavement tax allowance which the Government have stated the Revenue are liable under domestic law to pay in full, as a result of an administrative error. The Court notes that the Government have offered a sum by way of payment to the applicant, but he has not accepted the offer. The Government submit that the offer means that the applicant can no longer claim to be a victim for the purposes of the Convention, but they have made no comments otherwise on the admissibility of the application. The Court considers that the Government’s offer to pay the applicant derives from procedural regulations and is not related to his complaint of discrimination. It cannot therefore be said to amount to an acknowledgement of, either expressly or in substance, or to offer redress for an alleged violation in the sense necessary to deprive the applicant of his status as a victim (see, amongst other authorities, Dalban v. Romania [GC], no. 28114/95, ECHR 1999-VI, § 44). 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 and concludes 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.

C. Widow’s Pension - possible future claims

Some of the applicants complain that if they were women they would at some point in the future become entitled to a widow’s pension. The  Government contest the admissibility of the claims in so far 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.

Some of the applicants have indicated a wish to withdraw the complaints in respect of their possible future claims for widow’s pension in response to the Government’s observations. The applicant in application no. 63471/00 submits, however, that his claim can be distinguished from that of the applicant in the case of Willis . He submits that he would become entitled to a pension in 2004 or 2005 and that is not so far in the future as to make the claim purely speculative. The Court recalls its finding 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 considers that the applicant’s complaint is still essentially hypothetical. There is thus no reason to distinguish it from that of the applicant in the case of Willis . That part of each application must therefore be declared inadmissible as manifestly ill-founded, under Article 35 §§ 3 and 4.

D. Widow’s Payment

The Court notes that the Government have submitted observations in respect of some of the applicants, concerning their claims for widow’s payment. Two of the applicants have also included observations about their complaints concerning non-payment of this benefit. The Court notes however, that in the partial decision of 15 January 2002, this aspect of the applicants’ complaints has already been declared inadmissible.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints concerning non-payment of widowed mother’s allowance from the date set out at column 4 of the table ;

Declares admissible, without prejudging the merits, the complaint of the applicant in application no. 63476/00 concerning non-payment of bereavement tax allowance;

Declares the remainder of the applications inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President