FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53738/00 by Charles MCWILLIAMS 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 application lodged on 1 October 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Charles McWilliams, is a United Kingdom national, who was born in 1953 and lives in Bangor, County Down. He is represented before the Court by John Ross & Son, a firm of solicitors practising in Newtownards.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant married in 1988. He and his wife had a daughter born in 1984. On 3 May 1999 the applicant’s wife died. Shortly after his wife’s death he made a telephone enquiry with the benefits agency (but has been unable to substantiate this claim, see below).

The applicant applied for a widow’s payment in September 1999, which was refused in October 1999. On 9 November 2000 he applied for widowed mother’s allowance, which was refused on 19 December 2000.

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 was 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 was 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 case:

( 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 was widowed (and who had 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. Northern Ireland

Precise equivalents of all of the above provisions of primary and secondary legislation appeared in Northern Ireland legislation.

COMPLAINT

The applicant complains that British social security legislation discriminates against him 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 applicant further complains that he had no remedy under domestic law in breach of Article 13 of the Convention.

THE LAW

The applicant complains that the lack of provision for widowers’ benefits under British social security legislation discriminates against him 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. He further complains that he has been denied an effective remedy, contrary to 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

The Government submit that the applicant did not make a claim for the payment within three months of his wife’s death and thus cannot be said to be a victim for the purposes of the Convention. The applicant claims to have made a telephone enquiry with the benefits agency within three months of his wife’s death, but the Government submit that his claim is unsubstantiated. The applicant has not made any submissions in response.

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).

Until the 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 or tax allowance 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.

The applicant’s earliest substantiated claim for widow’s payment was made in September 1999, more than three months after the death of his wife. That part of his application is accordingly 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.

B. Widowed Mother’s Allowance

Widowed mother’s allowance is a continuing benefit 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. The applicant made his claim for widowed mother’s allowance on 9 November 2000. He cannot therefore be said to have been directly affected by the discrimination of which he complains during the period between his wife’s death, on 3 May 1999 and 9 November 2000. It follows that for this period he cannot claim to have been a victim for the purposes of the Convention and to that extent his application is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4.

The Court notes that the Government do not contest the admissibility of the applicant’s claim for widowed mother’s allowance from the date of the claim, and 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.

C. Complaint under Article 13

The Government have made no submissions about the admissibility of this aspect of the application. The Court recalls however 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 application 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 the application inadmissible insofar as it concerns non-payment of widow’s payment;

Declares the application inadmissible for the period between the applicant’s wife’s death and the date on which he made his claim for widowed mother’s allowance;

Declares the application inadmissible insofar as the applicant complains under Article 13 of the Convention;

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

Michael O’Boyle Matti Pellonpää Registrar President