FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57646/00 by Oliver McELROY against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 19 February 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza ,

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

Having regard to the above application introduced on 12 May 2000 and registered on 26 May 2000,

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,  Oliver McElroy, is a United Kingdom national living in Dromara , County Down, Northern Ireland. He is represented before the Court by Mr L. Allamby , a lawyer practising in Belfast The respondent Government are represented by Mr C.A. Whomersley, Foreign and Commonwealth Office, London.

A. The circumstances of the case

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

The applicant is a widower, his wife having died in November 1998. He cares for the three children of the marriage, born in 1993, 1995 and 1998.

On 22 December 1998 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 Widowed Mother’s Allowance, payable under the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

By a letter dated 23 February 1999, the Benefits Agency disallowed the applicant’s claim on the ground that there was no legal provision for benefits equivalent to those paid to a widow. The applicant lodged an appeal on 1 April 1999, which was heard and dismissed by the Social Security Tribunal on 20 April 2000.

The applicant receives weekly payments of incapacity benefit, income support and child benefit. The applicant calculates that, were he able to receive widows’ benefits, he would be around GBP 100 a week better off and would have received a one-off Widow’s Payment of GBP 1,000.

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 Contributions and Benefits (Northern Ireland) 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 (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; and

(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 under 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.

4. Time-limit for applications for benefits

The time-limit for claiming a Widow’s Payment or Widowed Mother’s Allowance is three months from the date of the spouse’s death.

5. 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 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.

COMPLAINTS

The applicant complains that United Kingdom social security legislation discriminates against him and his late wife on grounds of sex and thus violates Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

THE LAW

The applicant complains that the lack of provision for widowers’ benefits under United Kingdom 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 both Article 8 of the Convention and Article 1 of Protocol No. 1. He complains of a continuing violation from his wife’s death in 1998 onwards.

Article 14 states:

“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 states:

“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 Government do not contest the admissibility of the application.

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.

The Court considers further, in the light of the parties’ submissions, that the applicant’s own complaint of discrimination 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 part of the 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.

For these reasons, the Court, unanimously,

Declares admissible, without prejudging the merits, the applicant’s complaint of discrimination suffered by him in connection with his claim for widows’ benefits;

Declares inadmissible that part of the application complaining about discrimination suffered by the applicant’s late wife .

Michael O’Boyle Matti Pellonpää Registrar President