FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69189/01 by Laurence LUSTGARTEN against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 30 April 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza ,

Mr A. Pastor Ridruejo , Mrs E. Palm , Mr J. Makarczyk , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 7 February 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Laurence Lustgarten , is a United Kingdom national, born on 10 January 1946 and living in Oxford.

A. The circumstances of the case

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

The applicant and his wife were married in 1992. They had no children together and his late wife’s two children are over the age of majority. She worked for many years as a general medical practitioner and paid full social security contributions as an employed earner. She died on 20 May 1999.

On or around 1 April 2000 the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled, namely a Widow’s Payment and a Widow’s Pension, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 11 April 2000 that the Benefits Agency was unable to accept his application as a valid claim because the payment of widows’ benefits was specific to women, and the applicant was not a woman.

The applicant appealed to the Social Security Appeal Tribunal. On 17 August 2000 the appeal was adjourned pending service of a skeleton argument by the applicant and a response by the Benefits Agency.

On 9 January 2001, the applicant read a law report in the Times newspaper relating to the case of R. v Secretary of State for the Home Department ex parte Mahmood ( Amjad ) . In its decision, the Court of Appeal indicated that the Human Rights Act 1998 could not be invoked in a court after its coming into force where the administrative decision at issue had, as in the applicant’s case, been reached before that Act came into force. At about the same time, the applicant became aware of a decision of a Social Security Commissioner refusing leave to appeal to a widower raising identical complaints to the applicant’s on the ground that the Human Rights Act did not apply to refusals of benefit pre-dating its entry into force. In light of these decisions, the applicant determined that his appeal had no chance of success.

In January 2002, the applicant was informed that the file relating to his appeal had gone “missing”.

B. Relevant domestic law and practice

Under United Kingdom law, certain social security benefits, including Widow’s Payment and Widow’s Pension, are paid for out of the National Insurance Fund. By Section 1 of 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 (currently 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;

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

2. 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, inter alia :

( 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.

3. Time-limit for applications for benefits

Throughout the period in question, the time-limits for claiming widow’s payment and widow’s pension were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), regulation 19 (as amended) of which provided:

“(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;(...)”

Widow’s Payment and Widow’s Pension are each a “widow’s benefit” for this purpose.

4. The Welfare Reform and Pensions Act 1999

The Welfare Reform and Pensions Act (“the 1999 Act”) introduces, inter alia , a new allowance called the Bereavement Allowance, which replaces the Widow’s Pension. This is 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 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 thus continue to be entitled to the Widow’s Payment and Widow’s Pension where the relevant qualifying conditions are met.

COMPLAINTS

The applicant complains that British social security legislation discriminates against him and his late wife on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. He also invokes Article 13 of the Convention.

THE LAW

1. The applicant complains that the lack of provision for widowers’ benefits under British social security legislation discriminates against him and his late wife on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. He complains of a continuing violation from his wife’s death in 1999 onwards. He also invokes Article 13 of the Convention.

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 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.”

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.”

2. The applicant claims that, had he been a woman and had his wife been a man, he would have been aware of his entitlement to widow’s benefits in the event of her death. He claims 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. 1288, §§ 56-59 and the Valmont v. the United Kingdom decision of 23 March 1999, unpublished). In the present case, during the period between his wife’s death on 20 May 1999 and 1 April 2000, the applicant cannot be said to have been directly affected by the discrimination of which he complains, 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 be applied for within three months of the death.

It follows that for the period 20 May 1999 to 1 April 2000 the applicant cannot claim to have been a victim of a violation of his rights under the Convention and First Protocol, and that the application, insofar as it relates to non-entitlement to widows’ benefits during this period, is 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 applicant complains also about discrimination suffered by his late wife in respect of the decision to refuse him widows’ benefits. However, the Court does not accept that, in respect of any discrimination which may have been suffered by the applicant’s late wife, the applicant can claim to be a victim of the alleged violation. It follows that this aspect of the complaint 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.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint, in connection with his claim for a Widow’s Pension, relating to discrimination suffered by him during the period after 1 April 2000;

Declares inadmissible the remainder of the application.

Michael O’Boyle Matti Pellonpää Registrar President