THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38550/97

by Dean Edward SAWDEN

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 8 June 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 October 1997 by Dean Edward SAWDEN a   gainst the United Kingdom and registered on 12 November 1997 under file no. 38550/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the respondent Government’s letter of 13 August 1998 waiving the admissibility of the application;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1967 and resident in Hull . Before the Court he is represented by Ms Louise Howard, a welfare rights officer, Hull . The facts of the application, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant married in July 1994. The applicant and his wife had two children, born in 1989 and 1992. The applicant’s wife died of cancer on 11 August 1997, aged 28 years. The applicant is the administrator of his late wife’s estate.

The applicant’s wife was employed as a shop assistant for four years and contributed about half of their joint income. She paid full social security contributions as an employed earner, except when she gave up work to care for their children and was subsequently entitled to contribution credits as a person who was incapable of work. The applicant gave up work to nurse his wife and care for their children in January 1997.

On 8 September 1997 the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of Mrs Sawden , would have been entitled, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992 ("the 1992 Act").

By a letter dated 24 September 1997, the Benefits Agency informed the applicant that he was not entitled to any of the money he had claimed. The applicant lodged an appeal against this decision on 2 October 1997.

The applicant currently receives Child Benefit amounting to GPB 20.05 per week and income support of GPB 18.65 per week.

The applicant wishes to increase his income and continue to care for his children by working part time. However, under Income Support Rules any earnings over GPB 15 per week will be deducted from his benefit. His family’s standard of living is thus effectively fixed at a low level until circumstances change to allow him to return to full time work. If the applicant were entitled to receive social security benefits equivalent to those to which a woman in similar circumstance to himself would be entitled, he could work part time and would receive benefit of GPB 83.55 per week. He would also have received a one off Widow’s Payment of GPB 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 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 62.45 per week, with an extra GBP 9.90 per week in respect of the eldest eligible child, and a further GBP 11.20 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.

COMPLAINTS

The applicant complains that British social security and tax 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 further complains under Article 13 of the Convention of not having an effective remedy before a national authority.

PROCEDURE

The application was introduced on 29 October 1997 and registered on 12 November 1997.

On 21 May 1998, the Commission decided to communicate the application to the respondent Government.

By a letter dated 13 August 1998 the Government indicated that they did not intend to contest the admissibility of the application and accordingly would not submit any observations on admissibility. They did, however, reserve the right to submit observations before the merits were examined.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that the lack of provision for widowers’ benefits under British 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.

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.”

Article 13 states:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court observes that the Government do not contest the admissibility of the application and have submitted no observations in this connection.

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