European Court of Human Rights

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11581/02

by Ian DICKIE
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 28 February 2002,

Having regard to the partial decision on admissibility in this case of 8 October 2002,

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 Leicester. 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 12 August 1998 at the age of 62. At the time of her death, she had been in receipt of a retirement pension for over two years. The applicant, who reached the age of 65 one week after the death of his wife, subsequently contacted the Benefits Agency to enquire whether, in addition to his own pension, he was entitled to inherit part of his wife’s pension. He received a negative answer. In 2001 he submitted a claim for widow’s benefits to the Benefits Agency. The claim was rejected by a decision of 5 September 2001, on the ground that the claimant was not a woman. This decision was reconsidered by a reviewing officer within the Benefits Agency, who upheld it on 4 October 2001. The applicant did not appeal.

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.”

Article 14 provides:

“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. They stated that, as far as could be ascertained, the applicant’s wife had not been in receipt of GRB. He had not therefore been deprived of any entitlement to inherit part of her pension. They also argued that the applicant had only expressly claimed additional pension in 1998, his second claim in 2001 concerning other bereavement benefits. The application was accordingly out of time. Even if the second claim could be considered relevant to the present proceedings, the applicant had failed to exhaust domestic remedies by not appealing against the decision of the Benefits Agency.

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 to him solely by reason of his sex was unfair and unjustified. 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, 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 a widow. 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 objections concerning lack of victim status and non-exhaustion of 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 remainder of the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President