THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36578/97

by David Paul CORNWELL

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 11 May 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 30 May 1997 by David Paul CORNWELL against the United Kingdom and registered on 19 June 1997 under file no. 36578/97;

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

Having regard to the observations submitted by the respondent Government on 5 February 1999 and the observations in reply submitted by the applicant on 29 March 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in born in 1956 and living in Cambridge. He is represented before the Court by Mr A. Pethick , a solicitor practising in Saffron Walden, and by Mrs S. Moore living in London. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant’s wife died on 24 October 1989. He has a son, born on 24 April 1988, whom he cares for and in respect of whom he receives a weekly Child Benefit.

On 7 February 1997 the applicant’s representative contacted the Benefits Agency of the Department of Social Security to inquire about the statutory provisions for receiving widows’ benefits, namely a Widowed Mother’s Allowance and a Widow’s Payment.

On 14 February 1997 the Benefits Agency answered that Section 37 of the Social Security Contributions and Benefits Agency Act 1992 (“the 1992 Act”) provided only for widow’s benefits and not for widower’s benefits.

By letter of 28 March 1997 the Benefits Agency informed the applicant that:

“... your wife met both condition 1 and condition 2 for payment of the benefits ... and you will understand that if your late wife’s record had been that of a man, the survivor would have had title to widowed mother’s allowance and widow’s payment using that record.

Our records show that your late wife entered National Insurance on 11 July 1976 and the start of her working life for National Insurance purposes was 6 April 1976. From 6 April 1976 up to and including the tax year prior to her death on 24 October 1989 (i.e. 5 April 1989) she had a total of 14 qualifying years, having received qualifying earnings of at least 52 times the lower earnings limit for each particular year. This means that your late wife had a 100% record for the whole period of her working life up to the date of her death.”

On 23 April 1997 the Benefits Agency confirmed that if the applicant were a woman and his wife had been a man, he would, following her death, have been entitled to receive Widowed Mother’s Allowance at the full 100% basic rate plus an addition for Additional Pension which had been earned by virtue of the rate of contributions paid after 1978.

B. Relevant domestic law and practice

At the time of the applicant’s wife’s death, entitlement to widow’s payment and widowed mother’s allowance were governed by sections 24 and 25 respectively of the Social Security Act 1975 (“the 1975 Act”). These provisions were broadly similar to those currently in force, namely sections 36 and 37 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”). By Section 1 of the 1992 Act, the funds required for paying such benefits are to be provided out of the National Insurance Fund 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 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.

4. Time-limit for applications for benefits

Section 165A(1) of the 1975 Act, as inserted by the Social Security Act 1985, which applied at the time of the applicant’s wife’s death, stated:

“Except in such cases as may be prescribed, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied –

(a) he makes a claim for it –

( i ) in the prescribed manner; and

(ii) ... within the prescribed time ... .”

The above rule was replaced by a similar provision in the Social Security Administration Act 1992, section 1(1), subtitled “Entitlement to benefit dependent on claim”.

Throughout the period in question, the relevant time-limits for claiming widow’s payment and widowed mother’s allowance were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), 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.”

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 ... .”

COMPLAINTS

The applicant complains that sections 36 and 37 of the 1992 Act discriminate against him on grounds of his sex and thus violate Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

PROCEDURE

The application was introduced on 24 April 1997 and registered on 13 May 1997.

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

The Government’s written observations were submitted on 5 February 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 29 March 1999.

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. He complains of a continuing violation from his wife’s death in 1989 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 insofar as it relates to the period 24 October 1989 to 7 February 1996. They point out that the applicant did not attempt to claim widows’ benefits until 7 February 1997 and that it was only from this date onwards that the legislation was applied to him. Had a woman claimed widows’ benefits on 7 February 1997 in respect of the death of her husband in October 1989, she would have been told that she was out of time for claiming a widow’s payment and that she could only claim widowed mothers’ allowance with effect from 8 February 1996.

The applicant contends that he was affected by the impugned legislation before he made his claim on 7 February 1997, since the legislation by its very existence violated his Convention rights. In his submission, the Government’s approach ignores the fact that the fundamental reason that he does not, and never has, had entitlement to widows’ benefits is because he is a man, and not because of his failure to make an earlier claim. The reason for his delay in applying for widows’ benefits was the fact that, on the face of the legislation, he is not entitled to such benefits. It can be assumed that had the United Kingdom not acted in breach of the Convention, the applicant would have made his claim in time.

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 decision of 23 March 1999, unpublished). In the present case, during the period between his wife’s death on 24 October 1989 and his claim for benefits on 7 February 1997, the applicant cannot be said to have been directly affected by the discrimination of which he complains, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefits under domestic law.

It follows that for the period 24 October 1989 to 7 February 1997 the applicant cannot claim to have been a victim of a violation of his rights under the Convention and First Protocol, and that the application, insofar as it relates to this period, 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.

The Court notes that the Government do not contest the admissibility of the application insofar as it relates to the period after 7 February 1997. It 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.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE insofar as it relates to the period 24 October 1989 to 7 February 1997;

DECLARES THE APPLICATION ADMISSIBLE insofar as it relates to the period from 7 February 1997 onwards, without prejudging the merits of the case.

S Dollé J-P. Costa

Registrar President