FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68621/01 Stewart Paul SINCLAIR against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 12 March 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 28 November 2000 and registered on 26 April 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Stewart Paul Sinclair , is a United Kingdom national, born in 1952 and living in London.

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 on 2 May 1990 and had two children, born in 1987 and 1990. His wife worked from around 1970 until 1994, paying social security contributions as an employed earner. His wife died on 9 November 1994.

On 18 May 2000 the applicant 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 Widowed Mother’s Allowance, and thereafter a Widow’s Pension, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). By a letter dated 14 June 2000, the Benefits Agency informed him that it was unable to pay the applicant any of the benefits claimed because he was not a woman. On 30 June 2000 the applicant appealed to an independent appeal tribunal. On 17 November 2000, the tribunal decided that:

“Having reconsidered the evidence the tribunal concluded that, on the basis of present legislation the appeal is misconceived because Mr Sinclair is not a widow but has claimed Widows Benefit which would appear to make his subsequent appeal misconceived and the appeal is therefore struck out [ sic ].”

On 11 September 2000 the applicant contacted the Inland Revenue and applied for widow’s bereavement tax allowance for the years 1994/5 and 1995/6. By a response dated 14 September 2000, he was informed that he did not qualify for the tax allowance, since he was a man and the law provided only for payments to widows.

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 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. 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 case:

( 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 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:

( 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.

If the applicant were a woman, he could look forward to entitlement to a Widow’s Pension in the future, when he would no longer be entitled to the Widowed Mother’s Allowance.

4. Time-limit for applications for benefits

At the time of the applicant’s claim for widow’s payment and widowed mother’s allowance, the relevant time-limits 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;(...)”

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 Human Rights Act 1998 (“the 1998 Act”)

Section 3(1) of the 1998 Act provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”

Section 4 of the 1998 Act provides (so far as relevant):

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (...)

(6) A declaration under this section (...) -

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and

(b) is not binding on the parties to the proceedings in which it is made.”

Section 6 of the 1998 Act provides (so far as relevant):

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or

(b) in the case of one or more provisions of (...) primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes-

(a) a court or tribunal (...)”

Section 10 of the 1998 Act provides (so far as relevant):

“(1)This section applies if -

(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right (...)

(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”

The 1998 Act entered into force on 2 October 2000.

7. The Welfare Reform and Pensions Act 1999

The Welfare Reform and Pensions Act (“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 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 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 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.

COMPLAINTS

The applicant complains that British social security and tax legislation discriminates against him and his late wife 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 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 and tax legislation discriminates against him and his late wife 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 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 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.”

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 his entitlement to widows’ benefits, had he been a woman, 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 9 November 1994 and 18 May 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 9 November 1994 to 18 May 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 and bereavement tax allowance. 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

Declares inadmissible the applicant’s complaint, in connection with his claim for widows’ benefits, relating to discrimination suffered by him during the period 9 November 1994 to 18 May 2000;

Declares inadmissible the applicant’s complaint about discrimination suffered by his late wife in respect of the decision to refuse him widows’ benefits and bereavement tax allowance;

Decides to adjourn the examination of the remainder of the application.

Michael O’Boyle Matti Pellonpää Registrar President