European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17233/03
by Vincent FASCIONE
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 2 December 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 4 August 2000,

Having regard to the decision to communicate the application and to join it to others (nos. 28067/02, 28087/02, 14401/03, 4839/03, 22361/03, 26083/03, 27988/03, 30242/03, 35695/03, 345/04, 5069/04, 11872/04, 26218/04, 36534/04, 1503/05, 18566/05),

Having regard to the formal declaration accepting a friendly settlement of part of the case,

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, Mr Vincent Fascione, is a British national who was born in 1948 and lives in Lanarkshire. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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 3 January 1991, leaving him with three children. Shortly after his wife’s death the applicant contacted the Benefits Agency and was informed that he was not entitled to widow’s benefits. The applicant applied again in March 1997 and was refused. He made another application on 16 October 1997, and was again refused. On 15 August 2000 he appealed against this last refusal, and was informed on 25 August 2000 that there was no right of appeal and that his only remedy was to seek judicial review in the High Court.

On 8 September 2000 the applicant again applied for widow’s benefits. On 27 October 2000 the decision maker decided that the applicant was not entitled to widow’s benefits because he was not a widow. He appealed and on 8 November 2000 the decision maker reconsidered but decided the decision could not be changed. The applicant appealed to the Appeal Tribunal which rejected his appeal on 10 April 2001.

On 10 April 2001 the applicant began receiving Widowed Parent’s Allowance.

The applicant appealed to the Social Security Commissioner against the decision of 10 April 2001. On 1 December 2004 the Commissioner found against the applicant. The applicant applied to the Commissioner for leave to appeal and was refused on 8 March 2005.

Meanwhile, on 23 July 2001 the applicant wrote to the Inland Revenue requesting a Widow’s Bereavement Allowance (“WBA”). He was informed by a letter dated 15 August 2001 that the allowance was not available for men and that, even if he had been eligible, the deadline for applying for it had expired on 31 January 1999.

B.  Relevant domestic law and practice

The relevant domestic law and practice are described in the Court’s judgments in the cases of Willis v. the United Kingdom, no. 36042/97, §§ 14 26, ECHR 2002-IV; Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 26 March 2007 and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007.

COMPLAINTS

The applicant complained that British social security and tax legislation discriminated against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

THE LAW

A. The applicant’s claims in respect of Wpt and/or WMA

By a letter of 15 August 2005 and a declaration of 27 July 2006 the applicant notified the Court that he had been offered GBP 28,860.55 in respect of his claims for Widow’s Payment (“Wpt”) and/or Widowed Mother’s Allowance (“WMA”) and that he had accepted payment.

The Court takes note of the friendly settlement reached between the parties in respect of Wpt and/or WMA. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).

Consequently, this part of the application should be struck out of the list.

The applicant claimed GBP 4,000 in respect of the costs and expenses of the friendly settlement proceedings, inclusive of value added tax (“VAT”). This included GBP 1,460 which he had already received from the Scottish Legal Aid Board, GBP 1,260 in solicitors’ fees and GBP 1,280 for out of pocket expenses.

The Government contested the claim, submitting that they had already agreed to pay the solicitors’ fees.

The Court has a discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court), (see Nowaczyk v. Poland (dec.), no. 14118/05, 11 March 2008 and Ghaderypoor v Turkey (dec.), no. 49622/07, 6 May 2008).

According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. It further appears from the Registry’s contacts with the applicant’s former legal representatives that they have already been paid the sum of GBP 621.26 and that the file has been closed. On the basis of the information in its possession and the Court’s case-law, the Court sees no reason to make any award.

B. The applicant’s claims in respect of WBA and WP

In respect of WBA, the Court considers, as it held in Cornwell v. the United Kingdom (no. 36578/97, (dec.), 11 May 1999) that 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 widows’ benefits until she had made a claim (see also White v. the United Kingdom, no. 53134/99 (dec.), 7 June 2001, where the Court clarified that, as long as an applicant had made clear to the authorities his intention to claim benefits, the precise form in which he did so was not important). Similarly, a man who failed to apply within the time-limits as they applied to a woman claimant could not, in most cases, claim to be a victim of discrimination, since a woman in the same position would not have been entitled to the benefit in question (see Rogan v. the United Kingdom, no. 57946/00, (dec.), 8 September 2001).

It is to be noted that the applicant’s claim for WBA made in 2001 had been made out of time. Thus, the applicant cannot claim to have been a victim of a violation of his rights under the Convention and Protocol No. 1, and the complaint in respect of WBA is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

Regarding the claim for Widow’s Pension (“WP”) the Court held in its lead judgment regarding WP that at its origin, and until its abolition in respect of women whose spouses died after 9 April 2001, WP was intended to correct “factual inequalities” between older widows, as a group, and the rest of the population and that this difference in treatment was reasonably and objectively justified. Moreover, the Court considered that the United Kingdom could not be criticised for not having abolished WP earlier and that it was not unreasonable of the legislature to decide to introduce the reform slowly (see Runkee and White, cited above, §§ 40-41). The Court, consequently, considering it was not necessary to examine separately the complaint in respect of Article 8, did not find a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in respect of the non payment to the applicants of WP or equivalent (ibid § 42).

Consequently, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Conclusion

In conclusion, therefore, the Court strikes out of its list the applicant’s complaints as regards Widow’s Payment and/or Widowed Mother’s Allowance and declares inadmissible the applicant’s complaint as regards Widow’s Bereavement Allowance and Widow’s Pension.

For these reasons, the Court unanimously

Disjoins the application from the others to which it was joined;

Decides to strike out of its list of cases the applicant’s complaints about non-entitlement to a Widow’s Payment and/or Widowed Mother’s Allowance;

Declares inadmissible the remainder of the application.

Fatoş Aracı Lech Garlicki
Deputy Registrar President