v. THE UNITED KINGDOM
(Applications nos. 63684/00, 63475/00, 63484/00 and 63468/00)
14 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the cases of Hobbs, Richard, Walsh and Geen v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Chamber composed of:
Mr J. Casadevall,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mrs F. Elens-passos, Deputy Section Registrar,
Having deliberated in private on 24 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASES
7. The facts of each case, as submitted by the parties, may be summarised as follows.
A. Mr Hobbs, no. 63684/00
B. Mr Richard, no. 63475/00
C. Mr Walsh, no. 63484/00
D. Mr Geen, no. 63468/00
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Income and Corporation Taxes Act 1988 (“the 1988 Act”)
“Where a married man whose wife is living with him dies, his widow shall be entitled –
(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year, and
(b) (unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year.”
A widow had six years from the end of the tax year in which her husband died to claim the allowance.
B. The House of Lords’ judgment in Wilkinson
A general principle applied to affording just satisfaction is to put the applicant so far as possible in the position in which he would have been if the State had complied with its obligations under the Act. In a discrimination case, in which the wrongful act is treating A better than B, this involves forming a view about whether the State should have complied by treating A worse or B better. Normally one would conclude that A’s treatment represented the norm and that B should have been treated better. In some cases, however, it will be clear that A’s treatment was an unjustifiable anomaly. Such a case is Van Raalte v Netherlands ..., in which the Court found a breach of Article 14 read with Article 1 of the First Protocol because the law exempted unmarried childless women over 45 from paying contributions under the General Child Benefits Act without exempting unmarried childless men. The exemption for women was abolished in 1989 but judgment was not given until 1997. The court rejected a claim for repayment of the contributions from which the applicant would have been exempt if he had been a woman.
In my opinion the reason for the rejection of this claim is that if the State had complied with its Convention obligations, it would done what it did in 1989 and not exempted either men or women. It follows that the applicant would have been no better off. He would still have had to pay. In the circumstances, the judgment itself was treated as being sufficient just satisfaction.
The same is true in this case. There was no justification whatever for extending the widows’ allowance to men. If, therefore, Parliament had paid proper regard to Article 14, it would have abolished the allowance for widows. Mr Wilkinson would not have received an allowance and no damages are therefore necessary to put him in the position in which he would have been if there had been compliance with his Convention rights”.
“... In any claim against a public authority for financial compensation in respect of past discrimination it must be remembered that the general public (often the general body of taxpayers) will be footing the bill. In determining the requirements of just satisfaction, just as in the application of the Convention as a whole, regard should be had not only to the victim’s rights but also to the interests of the public generally. Take a case where A establishes discrimination on the basis that he should have been placed in the same class as B, both of them advantaged financially over class C. To compensate A for his past financial disadvantage vis à vis B would be costly for C (the non-benefiting class of taxpayers)—disproportionately so if class A is large, classes B and C comparatively small. Whether this would be fair to C would depend upon the justification for advantaging A and B over C in the first place and indeed for doing so to the extent that B was originally advantaged over A and C. It might well be fairer overall to leave A uncompensated in respect of the past discrimination against him. At the very least, bearing in mind that class A are taxpayers too, fairness to C might require that class A’s compensation be reduced to reflect the fact that they too would have had to pay more tax to fund their own additional benefits. Just these considerations, indeed, may yet arise in the parallel case of Hooper were a claim for just satisfaction now to be advanced in Strasbourg.
Moreover, by the same token that it will not invariably be right to compensate the complainant even where there is a case for preferential treatment of one class and A falls into it, it will not invariably be inappropriate to compensate the complainant even though there was no case for anyone to be treated preferentially in the first place. Take, for example, the case of a public body unjustifiably paying its male employees more than women doing the same job. It could not then reasonably be argued that the men’s excess wages represented an unjustified windfall which should not properly be paid to the women also. Such an argument, indeed, would almost certainly fail even if the employer proved that, had all employees been paid the same, this would have been at the women’s (lower) rate—a plausible case if, say, the women employees substantially outnumbered the men. This example, I may say, formed the bedrock of Miss Rose’s argument in respect of just satisfaction in the present appeal.
What, then, distinguishes the employee case from Van Raalte itself? The critical feature of the Van Raalte case which to my mind distinguishes it from the employee case is that the complainant in Van Raalte was in essentially the same position as all other contributors to the scheme (save only for the wrongly exempted group). Realistically the discrimination was no more against him than against the others: there was simply no case for exempting anyone. It would thus have been most unfair to the general body of contributors (category C) to have required them to subsidise not merely the exempted class of women but also the equivalent men. That, however, is not the position in employment cases. In the postulated employment case the discrimination can clearly be seen to have been against the less well-paid women. If the men doing the same work were thought to be worth the higher wage, so too were the women. There can be nothing unfair in making the employer compensate the women in respect of the past discrimination against them (although, of course, in the case of a public authority, the compensation will indirectly fall to be paid by the general public).
Into which category, then, does the present appeal fall? Is the situation here akin to that in Van Raalte or to the employment type of case? To my mind there can be only one answer to this question: the position here is just as it was in Van Raalte. The Court of Appeal rightly characterised the widows bereavement allowance as ‘an anachronistic relic of a tax regime abandoned by 1994’ and rightly concluded that the discrimination ‘provided widows with an unjustified advantage not merely over widower taxpayers but over all taxpayers.’
In a case like this, therefore, the past discrimination suffered by widowers is less (and less deserving of compensation) than would be the discrimination suffered by the general body of taxpayers were they now required to fund this unjustified benefit not only for qualifying widows but for widowers too .
Even though, as the House was told, the issue of just satisfaction only arose at the reconvened hearing before the Court of Appeal and at the prompting of the Court itself, in my judgment it provides an ample basis for declining now to pay out to this appellant.”
C. Social security benefits for widows before 9 April 2001
1. Widow’s Payment
(i) she was under pensionable age (60) 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
3. Widow’s Pension
(i) at the date of her husband’s death she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65; or
(ii) she ceased to be entitled to a Widowed Mother’s Allowance at a time when she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65.
D. The Welfare Reform and Pensions Act 1999
(i) widows and widowers whose spouse died on or after 9 April 2001 and who were under pensionable age (60 for women and 65 for men) at the time of the spouse’s death, and
(ii) widowers whose wife died before 9 April 2001, who had not remarried and were still under pensionable age on the that day.
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
A. Tax Allowance
“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 1 of Protocol No. 1 provides:
“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.”
1. The Government’s preliminary objection concerning Mr Geen
(1) Since under the 1992 Act and subordinate legislation, a widow was not automatically entitled to survivors’ benefits and had to claim them from the relevant authority, unless or until a man has made a claim to the domestic authorities for bereavement benefits, he cannot be regarded as a “victim” of the alleged discrimination involved in the refusal to pay such benefits, because a woman in the same position would not automatically be entitled to widow’s benefits until having made a claim. However, as long as an applicant has made clear to the authorities his intention to claim benefits, the precise form in which he has done so is not important.
(2) Similarly, a widower who did not apply within the age- and time-limits as they applied to women cannot claim to be a victim of discrimination, because a woman in his position would also have been refused the benefits or allowance in question.
(3) The refusal of widow’s benefits to men is not a “continuing violation or situation”, since a widower cannot claim to be a victim of discrimination until he has applied for benefits and been refused. It has, therefore, been the Court’s consistent practice in such cases to hold that the six months time-limit in Article 35 § 1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits.
2 The merits
B. Other benefits
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
“... where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference ...”
(and see also Nimz v. Frie und Hansestadt Hamburg  ECR I-297; Johnson v. Chief Adjudication Officer  ECR I-3723; Remi van Cant v. Rijksdienst voor pensionen  ECR I-3811; Smith v. Avdel Systems  ECR I-4435).
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
3. Decides to strike-out the complaints of Mr Geen, Mr Richard and Mr Walsh under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 about non-entitlement to a Widow’s Payment and/or Widowed Mothers’ Allowance;
4. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in connection with the Mr Richard and Mr Walsh’s complaints concerning non-entitlement to a Widow’s Pension;
5. Adjourns its consideration of Mr Geen’s complaint about non-entitlement to a Widow’s Pension;
(a) that the respondent State is to pay Mr Richard and Mr Walsh, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) each in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, together with any tax that may be payable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Elens-passos Josep Casadevall
Deputy Registrar President