FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

No. 58372/00, 50 Applications against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 10 September 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza ,

Mr A. Pastor Ridruejo , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi ,

Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above applications,

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, including Widow’s Payment, Widowed Mother’s Allowance, and Widow’s Pension, are 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 are 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 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 has been widowed is entitled to a widow’s payment (at the material time, a lump sum payment of GBP 1,000) 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; and

(ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act.

The Widow’s Payment replaced an equivalent earlier payment, called a Widow’s Allowance, paid to qualifying widows under the Social Security Act 1975.

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.

The Widowed Mother’s Allowance currently amounts 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 has been widowed (and who is not remarried) is entitled to a Widow’s Pension if her husband satisfied the contribution conditions set out in a Schedule to the Act and:

( i ) at the date of her husband’s death she was over the age of 45 but under the age of 65; or

(ii) 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 widows’ benefits 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 1997, regardless of the date of bereavement.

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. The Welfare Reform and Pensions Act 1999

The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) introduces two new social security benefits, Widowed Parent’s Allowance and  Bereavement Allowance. The Widowed Parent’s Allowance replaces the Widowed Mother’s Allowance. The Bereavement Allowance replaces the Widow’s Pension. Both will be payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduces 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 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 of primary and secondary legislation appear in Northern Ireland legislation.

COMPLAINTS

The applicants complain that British social security legislation is discriminatory 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 application nos. 63477/00, 63480/00, 63647/00, 65507/01 and 75126/01 make the same complaint also in respect of British tax legislation. The applicant in application no. 61878/00 complains also under Article 6 of the Convention that he was denied a right of appeal against the refusal of widows’ benefits. Certain of the applicants also invoke Article 13 of the Convention.

THE LAW

1. 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 application nos. 63477/00, 63480/00, 63647/00, 65507/01 and 75126/01 make the same complaint also in respect of lack of provision for Bereavement Tax Allowance for men under British tax legislation. All applicants complain of a continuing violation from their wives’ deaths on the dates set out at column 5 of the table attached.

Article 14 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 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.”

The applicants claim that, had they been women and had their wives been men, they would have been aware of their entitlement to widow’s benefits in the event of their death. They claim that this entitlement would have included Widow’s Payment.

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, the Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 128, §§ 56-59 and the Valmont v. the United Kingdom , application no. 36385/97, decision of 23 March 1999, unpublished). In the present cases, during the period between their wives’  deaths, on the dates set out at column 5 of the table attached, and the dates on which they lodged their claims for widows’ benefits, as set out at column 6 of the table attached, the applicants cannot be said to have been directly affected by the discrimination of which they complain, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefits under domestic law. In particular she would have had no entitlement to a Widow’s Payment, which must, since 7 April 1997, be applied for within three months of the death.

It follows that for the period between their wives’ deaths and the dates on which they lodged their claims for widows’ benefits the applicants cannot claim to have been victims of a violation of their rights under the Convention and First Protocol, and that the applications, insofar as they relate to non-entitlement to widows’ benefits during this period, are 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.

2. The applicants in applications nos. 63477/00, 63480/00, 63647/00, 64986/01, 64996/01, 65478/01, 65507/01, 65906/01, 67913/01, 68175/01, 68264/01, 68449/01, 69076/01, 69491/01, 70741/01, 71176/01, 71428/01, 71570/01, 71758/01, 72656/01, 73646/01, 73653/01, 74961/01, 77129/01, 77424/01 and 682/02 complain also about discrimination suffered by their late wives in respect of the decisions to refuse widows’ benefits and/or Bereavement Tax Allowance. However, the Court does not accept that, in respect of any discrimination which may have been suffered by those applicants’ late wives, the applicants concerned can claim to be a victim of the alleged violation. It follows that this aspect of the applications concerned is also 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.

3. The applicants in applications nos. 61878/00, 63477/00, 63480/00, 63647/00, 64986/01, 64996/01, 65478/01, 65507/01, 65906/01, 67913/01, 68449/01, 69076/01, 69491/01, 70741/01, 71176/01, 71428/01, 71570/01, 72656/01, 73653/01, 74961/01, 75126/01 and 682/02 also invoke Article 13 of the Convention.

Article 13 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.”

The Court recalls 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, 21.05.2002, unreported, § 62). It follows that this aspect of the applications concerned is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

4. The applicant in application no. 61878/00 complains also that the fact that he was denied a right of appeal against the refusal of widows’ benefits amounts to a violation of Article 6 of the Convention.

Article 6 provides (as relevant):

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

The Court recalls that Article 6 § 1 applies only to disputes (“ contestations ”) over rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law. It does not in itself guarantee any particular content for “rights and obligations” in the substantive law of Contracting States nor does it require that there be a national court with competence to invalidate or override national law (see, for example, application no. 24875/94 Logan v. the United Kingdom, 86-A DR 74). The Court observes that the applicant in application no. 61878/00 did not have an arguable claim to widows’ benefits under domestic law because, pursuant to the clear provisions of the 1992 Act, such benefits were payable only to widows. It follows that this aspect of application no. 61878/00 is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

4. The Court considers that it cannot, on the basis of the file, determine the admissibility of the remainder of each application and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice of them to the respondent Government.

For these reasons, the Court, unanimously

Decides to adjourn the examination of the applicants’ complaints, in connection with their claims for widows’ benefits, relating to discrimination suffered by them during the period after the dates on which they lodged their claims for widows’ benefits;

Decides to adjourn the examination of the applicants’ complaints, in application nos. 63477/00, 63480/00, 63647/00, 65507/01 and 75126/01 of discrimination suffered by them in connection with their claims for Bereavement Tax Allowance;

Declares inadmissible the remainder of each application.

Michael O’Boyle Matti Pellonpää Registrar President