THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59314/00

28 Applications against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 10 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , 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 (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

For the period up to 7 April 1997, the time-limits for claiming widow’s payment and widowed mother’s allowance 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 1987, regardless of the date of bereavement.

In addition, section 1(2) of the Social Security Administration Act 1992 provides, in relation to claims for Widow’s Payment:

“Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it –

(a) if the benefit is a widow’s payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made ... .”

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 (“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 1 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 1 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.

COMPLAINT

The applicants complain that 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. 63468/00, 63475/00 and 63484/00 make the same complaint also in respect of British tax legislation.

THE LAW

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. 63468/00, 63475/00 and 63484/00 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 3 of the table attached.

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 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 3 of the table attached, and the dates on which they lodged their claims for widows’ benefits, as set out at column 4 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.

Certain of the applicants complain also about discrimination suffered by their late wives in respect of the decisions to refuse the applicants widows’ benefits. The Court observes that this aspect of the complaints does not raise any issues separate to those raised in respect of the discrimination alleged to have been suffered by the applicants themselves. The Court further observed that the interests of justice do not require that those applicants be authorised to represent their deceased wives in this connection. It follows that this aspect of the complaints 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 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 the they lodged their claims for widows’ benefits;

Decides to adjourn the examination of the applicants’ complaints, in application nos. 63468/00, 63475/00 and 63484/00, of discrimination in connection with their claims for bereavement tax allowance;

Declares inadmissible the remainder of each application.

S. Dollé J.-P. Costa Registrar President