Information Note on the Court’s case-law 43

June 2002

Hobbs v. the United Kingdom (dec.) - 63684/00

Decision 18.6.2002 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure of Government to establish existence of effective remedies following refusal to pay widow’s bereavement allowance to widower: admissible

The applicant’s wife died in February 1998. In October 2000 the applicant conta cted the Inland Revenue and applied for a widow’s bereavement allowance for the years 1998-99 and 1999-2000. He was informed that he did not qualify for the tax allowance, since the law provides for payments only to widows.

Admissible under Article 14 take n in conjunction with both Article 8 and Article 1 of Protocol No. 1: The Government argued that the applicant failed to exhaust two domestic remedies. The first one was judicial review proceedings in the High Court, by which, according to the Government, the applicant could have sought an order to the effect that the responsible authority would make a payment to him equivalent to the amount of the widow’s bereavement allowance which he would have received had he been a woman. The second was an appeal to th e Tax Commissioners. As to the possibility of judicial review proceedings, in the recent case of Wilkinson v. Commissioners of Inland Revenue , the High Court determined that a decision refusing a male claimant a widow’s bereavement allowance equivalent to that to which he would have been entitled had he been a woman was not unlawful under the Human Rights Act 1998 (the “1998 Act”). The court reached this conclusion notwithstanding its view that such refusal constituted a violation of Article 14 taken in con junction with Article 1 of Protocol No. 1. Although the court decided to make a declaration of incompatibility under section 4 § 2 of the 1998 Act in relation to section 262 of the Income and Corporation Taxes Act 1988, such a declaration is not binding on the parties to the proceedings in which it is made. Furthermore, a declaration of incompatibility provides the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. The minister can only exercise that power if he considers that there are “compelling reasons” for doing so. Moreover, the incompatibility which was subject to the declaration made in the Wilkinson case did not apply in relation to deaths occurring on or after 6 April 2000 by virtue of Article 34 of the Finance Act 1999. The Government did not comment as to whether this rendered the making of a remedial order under section 10 § 2 of the 1998 Act less likely in respect of cases involving claimants, like the appli cant and Wilkinson himself, whose wives died before that date. As regards the prospect of an appeal to the Tax Commissioners, a pending appeal against a refusal of widow’s bereavement allowance, brought by a claimant in a position equivalent to that of the applicant, was adjourned by the Tax Commissioners pending the outcome of the Wilkinson case. Furthermore the Tax Commissioners do not have the power to grant a declaration of incompatibility under section 4 of the 1998 Act and so, in this respect, their p owers are even more limited than those of the High Court in judicial review proceedings. Therefore, the Government had failed to establish that either of the domestic remedies referred to was sufficiently “effective” to be capable of providing the applican t with redress for his complaint.

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

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