FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59314/00 and 24 other applications by Steven DODDS and Others against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 8 April 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 10 October 2001,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

See attached table.

B. Relevant domestic law

At the material time, under United Kingdom law, certain social security benefits, including Widow’s Payment, Widowed Mother’s Allowance, and Widow’s Pension, were paid for out of the National Insurance Fund. By Section 1 of the Social Security and Benefits Act 1992 (“the 1992 Act”), the funds required for paying such benefits 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 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 has been widowed is entitled to a widow’s payment (at the material time, a lump sum payment of 1,000 pounds sterling (GBP)) if:

(i) she is 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 has been widowed (and who has not remarried) is 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 is 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 has been widowed (and who has not remarried) is 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 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 appear in Northern Ireland legislation.

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 applicants in applications nos. 63468/00, 63475/00, 63483/00 and 63484/00 make the same complaint also in respect of British tax legislation.

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. 63468/00, 63475/00, 63483/00 and 63484/00 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 Court notes that the Government do not contest the admissibility of the applications for the period following the date on which the applicants made their claims, as set out in column 4 of the attached table, insofar as they relate to claims for Widowed Mother’s Allowance. (They have however, reserved their position regarding the dates applicable to the claims by the applicants in applications nos. 62521/00 and 63466/00). The Court considers that this part of the applications 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 aspect of the applications is 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. Widow’s Pension

The applicants claim that similarly situated women would at some point in the future become entitled to a Widow’s Pension and that they should be entitled to an equivalent benefit. 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 the case of 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. Some have conceded that the complaints are in that respect inadmissible and the applicants in applications nos. 60469/00, 60978/00, 61392/00, 61408/00, 63484/00, 63472/00 and 64008/00 have indicated a wish to withdraw their claims to the extent that they relate to future non-entitlement to Widow’s Pension.

The Court recalls the finding 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.

C. Bereavement Tax Allowance

1. Applications nos. 63475/00 and 63484/00

The applicants in applications nos. 63475/00 and 63484/00 complain about non-payment of the allowance against income tax that would have been payable to women in their situation. The Government has made no observations on the admissibility of those complaints. 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.

2. Application no. 63468/00

The applicant in application no. 63468/00 initially made enquiries with the Inland Revenue about availability of a tax allowance in December 1995 or January 1996. The tax allowance would have been available for the years 1995/6 and 1996/7 to a woman in a similar situation. The applicant made a further, written claim to the Revenue on 29 September 2000, which was refused on 3 October 2000. His application was introduced to the Court on 29 September 2000.

The Government submit that the applicant cannot claim to be a victim in respect of the verbal enquiry in 1995/96, as he failed to submit a written application for the tax allowance as was required by domestic law. They also submit that his application was introduced to the Court more than six months after the refusal of his claim in 1996. So far as his later claim in September 2000 is concerned, the Government submit that it was simply a repeat of his earlier claim and that following the refusal in 1996, the fact that he made a further claim should not affect the inadmissibility of the application. They submit moreover that the applicant has failed to exhaust his domestic remedies, in that he did not seek to challenge the Revenue’s decision in the High Court or before the General (or Special) Commissioners of Tax. The Government refer to the fact that there are ongoing domestic proceedings, the outcome of which is uncertain, and they submit that the case of Hobbs v. the United Kingdom ((dec.), no. 63684/00, 18 June 2002), in which the Court found that no effective remedy exists in the domestic courts, was wrongly decided.

The applicant submits that the Government’s argument that the earlier claim to the Inland Revenue was invalid is inconsistent with their submission that the later claim was simply a ‘repeat’ of the earlier one. The applicant maintains that on any view he made a valid claim in September 2000 and he can properly claim to be a victim of a violation of the Convention in respect of the later refusal. His application was introduced to the Court within six months of that final refusal. He relies, inter alia , on the case of Hobbs v. the United Kingdom (cited above), in submitting that there was no effective domestic remedy available for him to pursue.

The Court notes that the Government do not accept that the applicant’s initial enquiries with the Inland Revenue could amount to a valid claim for bereavement tax allowance. The Government further contend that it was not open to the applicant to make a later claim for the same allowance, although they do not substantiate their argument. There appears to be no reason why a widow who had made an earlier invalid claim would not have been awarded the allowance as a result of a later, valid, claim. On that basis, the Court considers that the applicant can claim to be a victim of discrimination in respect of the claim made in 2000. The Court finds no reason to re-visit the decision in the Hobbs case (cited above) and finds that, in the circumstances, the domestic remedies referred to were not sufficiently “effective” so as to be capable of providing the applicant with redress for his complaint. 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.

3. Application no. 63483/00

The applicant in application no. 63483/00 also complains about non-payment of the bereavement tax allowance. The application was introduced on 29 September 2000. Whilst the applicant indicated in his initial application that he was complaining about discrimination in United Kingdom benefits and tax legislation, he did not provide any factual basis for his complaint in respect of tax legislation, as required by Rule 47 of the Rules of Court and that aspect of his complaint was not communicated to the respondent Government. His complaint in respect of social security benefits was communicated on 5 November 2001. On 20 June 2002, the applicant submitted an amended application, including details of a claim for bereavement tax allowance which he had made on 19 November 2001. The claim was refused by the Inland Revenue on 23 November 2001. That refusal was the final domestic decision for the purposes of Article 35 of the Convention. The Court finds that the application, insofar as it relates to the claim for a tax allowance, was not introduced until the factual basis for the complaint was outlined. That was when the amended application was lodged and the applicant did not therefore introduce the complaint within six months of the final decision. That part of the application must therefore be declared inadmissible under Article 35 §§ 1 and 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints regarding non-payment of Widowed Mother’s Allowance ;

Declares admissible, without prejudging the merits, the complaints of the applicants in applications nos. 63468/00, 63475/00 and 63484/00, regarding non-payment of a bereavement tax allowance;

Declares the remainder of the applications inadmissible.

Michael O’Boyle Matti Pellonp ää Registrar President

Annex

1. Name of applicant

2. Application no.

3. Date of bereavement

4. Date of benefit claim

5. Claim for widows’ benefits?

6. Claim for bereavement tax allowance?

Steven DODDS

59314/00

02/09/1990

08/05/2000

YES

NO

Norman TERRILL

60469/00

02/10/1999

09/03/2000

YES

NO

Paul DAVIS

60946/00

18/09/1998

16/05/2000

YES

NO

John SILKSTONE

60949/00

19/10/1998

24/11/1999

YES

NO

Kevin HUTTON

60978/00

07/07/1999

12/01/2000

YES

NO

Joseph FALLON

61392/00

13/07/1999

05/2000

YES

NO

Dennis THOMAS

61399/00

14/01/1999

12/05/2000

YES

NO

Grahame ROURKE

61408/00

04/08/1999

mid 04/2000

YES

NO

Tom CREW

61928/00

02/10/1998

18/05/2000

YES

NO

Suraj GOSWAMI

62521/00

09/11/1998

March 1999

YES

NO

Hugh MCCRORY

62775/00

1991

12/05/2000

YES

NO

George HERBERT

62868/00

11/11/1999

22/06/2000

YES

NO

Irwin HAGGAN

63176/00

28/08/1999

06/08/2000

YES

NO

Lee HYDE

63287/00

07/09/1996

17/06/2000

YES

NO

Paul BLANNIN

63465/00

30/03/1993

18/07/2000

YES

NO

Martin DONAVAN

63466/00

04/07/1992

12/10/1999

YES

NO

David GEEN

63468/00

17/10/1995

30/05/2000

YES

YES

David LINES

63472/00

20/01/2000

13/06/2000

YES

NO

Ian RICHARD

63475/00

14/10/1995

06/1997

YES

YES

Nigel HARRISON

63483/00

05/05/1996

04/05/2000

YES

YES

Paul WALSH

63484/00

01/03/1997

30/05/2000

YES

YES

Simon TURNER

64008/00

08/04/2000

08/2000

YES

NO

Victor HYLAND

64115/00

26/01/1999

03/09/2000

YES

NO

Ivan MCCAVERY

64984/01

16/11/1998

01/09/2000

YES

NO

Douglas FORBES

65727/01

29/06/1999

07/2000

YES

NO