FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65334/01 by Peter George ATKINSON 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 M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 24 January 2001 and registered on 29 January 2001,

Having regard to the partial decision of 7 June 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Peter George Atkinson , is a United Kingdom national, born on 28 October 1945 and living in Maidenhead. He is represented before the Court by Gavin Blackburn, a lawyer practising in London . 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 applicant, may be summarised as follows.

The applicant and his wife were married in 1992 and had two children, both born in 1995. The applicant’s wife died on 9 July 1998.

On 23 July 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 Widowed Mother’s Allowance, and thereafter a Widow’s Pension, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 25 July 2000 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows’ benefits were specific to women. He was told that he had no right of appeal since his claim had not been considered.

B. Relevant domestic law and practice

Under United Kingdom law, certain social security benefits, including 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. 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.

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:

(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.

3. 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. Each is payable to men and women who meet the relevant qualifying conditions.

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 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 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 on grounds of his 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 as of the day after his application for such benefits 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.

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 does not contest the admissibility of the application.

The Court considers that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously,

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää              Registrar              President