Information Note on the Court’s case-law 193

February 2016

Di Trizio v. Switzerland - 7186/09

Judgment 2.2.2016 [Section II]

Article 14

Discrimination

Method of calculation of invalidity benefits which in practice was discriminatory against women: violation

Article 8

Article 8-1

Respect for family life

Respect for private life

De facto discrimination against women arising out of method of calculation of invalidity benefits: Article 8 applicable

Facts – The applicant worked full time. In 2002 she was obliged to stop work because of back problems. In October 2003 she applied for a disability allowance on account of lower back and spinal pain. In February 20 04 she gave birth to twins, following a pregnancy during which her back pain had worsened. In 2005, during a household assessment carried out at her home, the applicant stated in particular that she would have to work half time because her husband’s income alone was insufficient. She was granted a disability allowance for the period from 2002 to May 2004. As of May 2004, however, the “combined” method was applied, on the grounds that even if she had not had a disability the applicant would not have worked f ull time after the birth of her children. The decision to apply this method was based, among other considerations, on the applicants’ statements to the effect that she felt able to work half time only and wanted to devote the remainder of her time to her h ousehold and children. As a result of the application of this means of calculation, the applicant did not receive any disability allowance.

In the proceedings before the Court the applicant complained that the application of the combined method discriminated against those concerned in comparison with persons who were not in paid employment and with those who did not have a household or childre n to care for and could therefore work full time, since the combined method did not apply in either of those cases.

Law – Article 14 taken in conjunction with Article 8

(a) Applicability – Measures enabling one parent to stay at home to look after the chi ldren promoted family life and thus had an impact on the way it was organised; such measures therefore came within the ambit of Article 8. The present case also concerned issues relating to the organisation of family life, albeit in a different manner. The available statistics demonstrated that the combined method, in the great majority of cases, concerned women who wished to work part time after the birth of their children. In its judgment in the applicant’s case, the Federal Court had acknowledged that th e combined method could in some cases result in the loss of the allowance, especially for women who worked part time following the birth of their children. The application of the combined method to the applicant had been apt to influence her and her husban d in deciding how they divided up tasks within the family and, accordingly, to have an impact on the organisation of their family life and careers. Furthermore, the Federal Court had explicitly recognised that the combined method could have negative reperc ussions for individuals working part time for family reasons, if they became disabled. These considerations were sufficient for the Court to find that the complaint came within the ambit of Article 8, under the heading of “family life”. The “private life” aspect of Article 8 also came into play in so far as it guaranteed the right to personal development and autonomy. To the extent that the combined method placed persons wishing to work part time at a disadvantage compared with those in full-time paid emplo yment and those who did not work at all, it could not be ruled out that this method of calculating disability benefits would limit the first category of persons in their choice as to how to divide their private life between work, household tasks and caring for their children.

The overwhelming majority of people affected by the combined method were women who wished to reduce their working hours after the birth of a child. Accordingly, the applicant could claim to be the victim of discrimination on grounds of gender. It followed that Article 14 taken in conjunction with Article 8 was also applicable. It was not necessary to ascertain whether the refusal to grant the applicant a disability allowance also amounted to discrimination on grounds of disability.

(b) Compliance with Arti cle 14 taken in conjunction with Article 8 of the Convention

(i) Existence of a presumption of indirect discrimination in the present case – In 2009 the combined method had been applied in 7.5% of all decisions on disability benefit. Of those cases, 97% h ad concerned women. These figures could be considered sufficiently reliable and telling to give rise to a presumption of indirect discrimination.

(ii) Whether there had been an objective and reasonable justification for the difference in treatment – The a im of disability insurance was to insure individuals against the risk of becoming unable, owing to a disability, to engage in paid employment or perform routine tasks which they had been able to perform previously and which they would still be able to carr y out had they remained in good health. This constituted a legitimate aim capable of justifying the differences observed. In itself, it was consistent with the essence and constraints of such an insurance scheme, which had limited resources and one of whos e guiding principles therefore had to be the control of expenditure. Nevertheless, this goal had to be assessed in the light of gender equality. Very weighty reasons would have to be put forward before a difference in treatment based on this ground could b e regarded as compatible with the Convention. The authorities’ margin of appreciation had therefore been very narrow.

If the applicant had worked full time or had devoted her time entirely to household tasks she would have received a partial disability all owance. It followed clearly that the decision refusing her entitlement to the allowance had been based on her assertion that she wished to reduce her working hours in order to take care of her children and her home. In practice, for the great majority of w omen wishing to work part time following the birth of their children, the combined method was a source of discrimination.

Furthermore, the application of the combined method had been the subject of criticism for some time from certain domestic authorities and commentators. These were clear indications of a growing awareness that the combined method was no longer consistent with efforts to achieve gender equality in contemporary society, in which women legitimately sought increasingly to reconcile family lif e and career. Moreover, alternative methods of calculation were possible which would take greater account of women’s choice to work part time following the birth of a child. This would make it possible to pursue the aim of greater gender equality without j eopardising the purpose of disability insurance.

In addition to these general considerations, the refusal to grant the applicant even a partial disability allowance had significant practical repercussions for her, even assuming that she could work part tim e. In view of the foregoing, there had been no reasonable justification for the difference in treatment to which the applicant had been subjected.

Conclusion : violation (four votes to three).

Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also the judgment of the Court of Justice of the European Union in Lourdes Cachaldora Fernández v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS), C-527/13, 14 April 2015, Information Note 184 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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