THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53134/99 by Brian WHITE against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 7 June 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides ,

Mr P. KÅ«ris , Mrs F. Tulkens , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 4 October 1999 and registered on 2 December 1999,

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,  Brian White, is a United Kingdom national , born in 1942 and living in Warrington. The respondent Government are represented by Mr C.A. Whomersley, Foreign and Commonwealth Office, Longon.

A. The circumstances of the case

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

The applicant married in 1960. He has advised members of the public about social security benefit entitlements in the United Kingdom since 1982. He and his wife had two children, one of whom was adopted and born in 1955, the other of whom was born in 1968. On 8 March 1999 his wife died. She had worked full time until the birth of her son in 1968 and had made full social security contributions.

The applicant notified the Benefits Agency of his wife’s death and of his intention to claim “widowers’ benefits” under new legislation (which became the Welfare Reform and Pensions Act 1999) on 10 March 1999. On 21 June and 8 September 1999, Angela Eagle, a Minister from the Department of Social Security, wrote to the applicant’s Member of Parliament confirming that as a man he was not entitled to claim widows’ benefits.

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; 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. 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.

COMPLAINTS

The applicant complains that the legislation concerned 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 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 1999 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 contest the admissibility of the application. They point out that the applicant has never made a claim for the relevant benefits in proper form. Hence, a widow in the same position as the applicant would not be entitled to those benefits either.

The applicant contends that he should not have had to apply for a benefit which “does not exist” in the United Kingdom in order to establish a violation of the Convention. He points out that he has worked in the social security field since 1982 and that he did not make any formal application for widows’ benefits because he knew that, as a man, any such application was bound to fail. He highlights also his intimation to the Benefits Agency on 10 March 1999 that he wished to claim widowers’ benefits under new legislation (namely the 1999 Act once it had been subsequently passed).

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”. The Court further recalls that in Cornwell v. the United Kingdom (no. 36578/97, admissibility decision of 11 May 1999) it held that, during the period between the date of the death of the applicant’s wife and the date of his claim for benefits, the applicant could not be said to have been directly affected by the discrimination of which he complained, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefit under domestic law. Accordingly, the applicant could only claim to be a victim of a violation of the Convention in respect of the period after 7 February 1997 when he had contacted the Benefits Agency to inquire about the statutory provisions for receiving widows’ benefits and subsequently received a reply from the Agency to the effect that the 1992 Act provided only for benefits for widows and not for widowers.

The Court notes that in the present case the applicant made clear in the form notifying the social security office of the death of his wife that he wished to claim “widowers’ benefits”. The Court further notes that on two occasions a Minister of the Department of Social Security wrote to the applicant’s Member of Parliament confirming that, as a man, the applicant was not entitled under the current law to claim widows’ benefits.

The Government contend that the applicant never made a claim for any benefits “in the proper form” and that, applying the Court’s reasoning in the Cornwell case, the applicant cannot claim to be a victim of discrimination in violation of  the Convention. The Court is unable to accept this argument. As appears from the Cornwell decision itself, the precise form in which an applicant indicates his intention to claim benefits is not of importance, the central question being whether the applicant has made clear his wish to claim benefits. The Court finds that in the present case the applicant made clear such intention and that he can accordingly claim to be a victim of a violation of the Convention for the purposes of Article 34.

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 application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President