THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57946/00 by Gerard ROGAN against the United Kingdom

The European Court of Human Rights, sitting on 18 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar,

Having regard to the above application introduced on 12 May 2000 and registered on 7 June 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, Gerard Rogan , is a British national living in Ballynahinch , 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 their agent, Mr. C.A. Whomersley of the 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 June 1996. He cares for the three children of the marriage, born in 1988, 1989 and 1994.

On 23 May 1997 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 (“the 1992 Act”).

By a letter dated 30 November 1998, the Social Security 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 15 December 1998, which was heard and dismissed by the Social Security Appeal Tribunal on 20 April 2000.

The applicant receives, per week, income support of GBP 110.35 and child benefit of GBP 37.55. The applicant calculates that, were he able to receive widows’ benefits, he would be GBP 100.05 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 Northern Ireland law, certain social security benefits, including Widow’s Payment and Widowed Mother’s Allowance, 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.

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.

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.

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) (Northern Ireland) 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; (...)”

In addition, throughout the period in question, section 1(2) of the Social Security Administration (Northern Ireland) Act 1992 provided, 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. 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.

COMPLAINT

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

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 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 1996 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 dispute the admissibility of the applicant’s complaint insofar as it relates to Widow’s Payment. They point out that, since the applicant’s wife died in June 1996 and he did not make a claim for Widow’s Payment until May 1997, and since the applicable time-limit for such a claim in May 1997 was three months from the date of death, the applicant would not have been eligible for it even if he had been a woman. Thus, they say, on the basis of the Court’s decision in the case of Cornwell v. the United Kingdom (application no. 36578/97, decision of 11 May 1999, unreported), that part of the applicant’s complaint is inadmissible. They argue that the applicant’s complaint about the introduction of the new three-month time-limit as of 7 April 1997 is inadmissible under Article 35 § 1 as having been lodged more than six months after the relevant “final decision” in that regard.

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. In particular, he argues that the three-month time limit applied in the amended version of the 1987 Regulations as from 7 April 1997 was so short as to render it excessively difficult to exercise his Convention rights and impaired the essence of his right of access to court. He also submits that the amendment concerned had a disproportionate effect on men since the social security authorities made no provision for the payment of widows’ benefits to men and gave them no information or assistance in connection with such claims or the applicable time-limits.

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, no. 36385/97, decision of 23 March 1999, unpublished). It recalls further that, in the above-mentioned Cornwell case, it held that until a person has made a claim for the relevant widow’s benefits he will not suffer any discrimination since a woman in the same position would not be entitled to those benefits under domestic law.

The Court notes that the applicant lodged his claim for Widow’s Payment within the twelve month time-limit which applied on the date of his wife’s death in June 1996, and thereafter until the day before the coming into force of new regulation 19 of the 1987 Regulations on 7 April 1997. Although, by the time his claim was in fact lodged on 23 May 1997, the three month time-limit introduced by new regulation 19 had entered into force, there is no indication that persons in the applicant’s position were given any prior warning of the change. By the time that the applicant could have known about the change following the introduction of the new time-limit, it was too late to lodge his claim. It notes further that the Social Security Agency in Northern Ireland, in its decision of 30 November 1998, refused the applicant’s claim for widow’s benefits on the ground that he is not a woman, and not on the ground that a woman would not have been entitled in any event. The Social Security Appeal Tribunal dismissed his appeal for the same reason on 20 April 2000. In the circumstances, the Court considers that the applicant may be considered to be a “victim” of discrimination in respect of his claim for a Widow’s Payment.

The Government make no comments on the merits of the case.

It is not necessary for the Court to consider separately the applicant’s complaints about the new regulation 19 of the 1987 Regulations since those regulations did not affect his status as a victim for the purposes of his central complaint about non-entitlement to widow’s benefits.

The Court considers that this part of 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 this part of 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.

2.  The applicant also complains about discrimination suffered by his late wife in respect of the decision to refuse the applicant 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 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.

For these reasons, the Court, unanimously,

Declares admissible that part of the application concerning discrimination alleged to have been suffered by the applicant in connection with his claim for widow’s benefits;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President