European Court of Human Rights

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13913/05

by David COLLINGBORN

against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 13 November 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 11 April 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national. He was born in 1933 and lives in Gosport, Hampshire. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office, London.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant’s wife died on 7 March 1990 at the age of 65. She had been in receipt of a retirement pension for over five years. He made a first enquiry in 1991 to the Department of Social Security about inheriting part of his wife’s pension, and received a negative response. He reached State pension age in January 1998. He made further enquiries over the period 2001-2003 about the possibility of receiving additional pension on the basis of the social security contributions paid by his wife, and submitted a claim for bereavement benefits on 2 October 2003. The claim was rejected by the Benefits Agency on 9 October 2003. The applicant appealed, and expressly raised the issue of inherited pension. By a decision of 12 February 2004, the Social Security Appeals Tribunal (SSAT) upheld the Benefits Agency’s decision regarding bereavement benefits. It did not address the applicant’s claim for inherited pension, as this matter had not been part of the decision under appeal. The applicant sought leave to appeal to the Social Security Commissioners. This was refused by a decision of the Commissioner of 18 May 2004, who held that the inherited pension issue had not been before the SSAT, which had therefore lacked jurisdiction to consider it. The applicant applied for permission to seek judicial review of the Commissioner’s decision. Permission was refused by Mr Justice Mitting on 18 October 2004, who observed that the Commissioners had been bound to refuse leave to appeal. He noted that the correct course of action for the applicant seemed to be to make a clear, separate claim for inherited pension. The applicant made a separate claim for inherited pension on 7 March 2006. He was informed by the Pension Service, in a letter dated 23 March 2006, that his pension could not be increased. His subsequent appeal was held to be inadmissible. The SSAT informed him that since the relevant decision in his case dated from 7 November 1997, his appeal was out of time.

B.  Relevant domestic law

The possibility of obtaining a higher retirement pension was introduced by the National Insurance Act 1959. This made provision for the payment of extra social security contributions by employees, entitling them to receive Graduated Retirement Pension (GRB) along with the basic State contributory pension. Where a married man who had paid such extra contributions died, his widow was entitled to receive an additional pension equal to half the rate of the deceased’s GRB. This was payable immediately if the widow had already reached pensionable age, or upon reaching pensionable age, as long as she had not remarried. The scheme thus afforded some additional financial protection for widows in old age. Subsequent legislative reform ended the payment of graduated contributions in April 1975. The right of widows already receiving part of their husband’s GRB, or to receive it when they reached pensionable age, was preserved. GRB was replaced by State Earnings-Related Pension Scheme (SERPS), introduced by the Pensions Act 1975. This too provided for widows to inherit part of the pension earned by their husbands.

The right of widowers to inherit part of the additional pension earned by their wives took effect on 5 April 1979. Men widowed after that date could receive a higher pension on condition that their wives had satisfied the prescribed conditions and that both husband and wife had attained pensionable age at the time of bereavement, a condition that did not apply to widows. The social security position of widowers was generally improved as of 9 April 2001, from which date they became entitled, in principle, to an identical suite of bereavement benefits to widows (for details of the relevant legislative provisions, see Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, §§ 18-20, 10 May 2007). This group of widowers may inherit additional pension under the same conditions as widows. According to the Government, Parliament opted to achieve full equalisation in relation to inherited additional pension in stages. This will take effect on 6 April 2010. All widowers who reach pensionable age after that date, irrespective of when their wives died, will be able to claim additional pension on the basis of the social security contributions paid by the latter. This change will not, therefore, affect the applicant.

COMPLAINT

The applicant complained under Article 14 of the Convention, taken together with Article 1 of Protocol No. 1, that the fact that he was unable to “inherit” his deceased wife’s SERPS entitlement constituted discrimination on the ground of sex.

THE LAW

The applicant submitted that the impossibility for him to inherit part of the pension earned by his wife constituted discrimination against him in relation to his property rights.

The relevant part of Article 1 of Protocol No. 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”

The relevant parts of Article 14 provide:

“The enjoyment of the rights and freedoms set forth in [the] 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.”

A.  The parties’ submissions

The Government contested the admissibility of the application, arguing that the applicant had failed to exhaust domestic remedies. The appropriate point in time for him to claim additional pension was 1998, when he became a pensioner. Although he had made enquiries to this end in 2003, the claim he submitted then, as well as the subsequent appeals, had concerned bereavement benefits. In any event, the final decision on that claim had been taken more than six months before the application was introduced before the Court.

As for the merits of the application, the Government accepted that entitlement to additional pension is capable of coming within the ambit of Article 1 of Protocol No. 1. They acknowledged that there was differential treatment on the ground of sex, but maintained that this was objectively justified and thus not contrary to Article 14. The initial restriction of the benefit to widows reflected their more vulnerable financial position in society. Parliament had then extended the benefit to widowers of pensionable age, who, as a group, could find themselves in similarly difficult financial circumstances following bereavement. Gradual social change had been accompanied by changes in social security legislation that had extended bereavement benefits, including inherited additional pension, to widowers. The process would be complete by 2010.

The applicant argued that the denial of additional pension solely by reason of his sex was unfair and unjustified. He complained that having been too young at first to claim the benefit, he will be too old to qualify in 2010. He considered that men and women should be treated equally in relation to all bereavement benefits.

B.  The Court’s assessment

The Court considers that additional pension, which is a benefit linked to the social security contributions paid by a deceased spouse, clearly comes within the ambit of Article 1 of Protocol No. 1 (Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 X). The applicant cannot receive this benefit because he is a man; under identical circumstances it would be payable to widows. There is therefore a difference in treatment based on sex, as the Government have acknowledged.

The Court recalls that where a State does decide to create a social security benefit, it must do so in a manner compatible with Article 14 of the Convention. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, §§ 34-36, 10 May 2007).

The close link between additional pension and what was originally known as Widow’s Pension is evident. Historically, they had the same objective of protecting a particularly vulnerable social group, older widows, and were exclusively reserved to them. As the Court noted in the Runkee and White case, it does not appear that at any stage evidence was presented to the Government or Parliament showing that older widowers without dependent children, as a group, were similarly disadvantaged and in need of special financial help (op. cit. § 38). Indeed, the Government referred to studies and statistics which show that the position of older women in British society is still a special one, and that many of them have expected to rely on their husband’s income throughout their life. The prospects of an older woman entering or returning to the labour market following the death of her husband, even in recent times, have been rather limited (ibid., § 23).

At the same time, and in response to gradual change in social attitudes and expectations in the United Kingdom, Parliament progressively broadened the conditions of eligibility for receiving an additional pension so as to allow widowers to benefit. The first group, widowers already over the pension age at the time of bereavement, was included as of 1979 on the basis that such men are in a somewhat similar financial position to widows; they can no longer attempt to increase their income though activity in the labour market. Entitlement to additional pension was further broadened in 2001 when widowers were given access to bereavement benefits on the same basis as women. Full equalisation between widows and widowers is to take place in 2010. It cannot be said that Parliament’s policy choice in this area is “manifestly without reasonable foundation”. Nor can it be said that Parliament should have achieved full equalisation at an earlier stage. Given the gradual nature of the change in women’s working lives, it is not possible to pinpoint a precise date at which the provision of special economic protection to older widows as a class ceased to be justified (Runkee and White, § 41). The Court therefore considers that the national authorities have remained within the broad margin of appreciation that they enjoy when it comes to social or economic strategy.

The Court concludes that the difference in treatment complained of may be regarded as reasonably and objectively justified. Accordingly, the applicant has not suffered discrimination in the enjoyment of his property rights. In the light of this finding it is not necessary to examine the Government’s preliminary objection that the applicant did not exhaust domestic remedies.

It follows that the application must be rejected as being manifestly ill founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President