European Court of Human Rights

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28092/02
by Hadi TOLUI
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 28 August 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 4 June 2001,

Having regard to the decision to communicate this application and to join it to other applications (nos. 27947/02, 27955/02, 27958/02, 27959/02, 27960/02, 27961/02, 27963/02, 27968/02, 27970/02, 27985/02, 27990/02, 28003/02, 28011/02, 28014/02, 28016/02, 28018/02, 28025/02, 28026/02, 28029/02, 28033/02, 28035/02, 28040/02, 28046/02, 28047/02, 28054/02, 28056/02, 28058/02, 28064/02, 28073/02, 28080/02, 28081/02, 28085/02, 28088/02, 28091/02, 28103/02, 28109/02, 28110/02),

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hadi Tolui, is a British national who was born in 1946 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. 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 9 July 1991. His claim for widows’ benefits was made in February 2001 and was rejected on 19 February 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.

B.  Relevant domestic law

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14 26, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

COMPLAINT

The applicant complained that British social security 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

The Court recalls that a widow was not automatically entitled to survivors’ benefits, but had to claim them from the relevant authority. Various time-limits applied: before 1997, a widow had to make a claim for Widow’s Payment (“WPt”) within twelve months of her husband’s death; a claim for Widowed Mother’s Allowance (“WMA”) or Widow’s Pension (“WP”) could be made outside that time-limit, but would be back-dated only twelve months. To be eligible for WMA, a woman had to be entitled to child benefit.

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).

Consequently, the applicant’s claim for Widow’s Payment 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 Wpt is therefore 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.

As to WMA, the applicant has provided no evidence of having children or of being in receipt of child benefit, and has made no express claim for WMA. This part of the application must therefore be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

In relation to the claim for 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 Widow’s Pension or equivalent (ibid § 42).

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

In view of the above it is appropriate to discontinue the application of Article 29 § 3.

For these reasons, the Court unanimously

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

Declares inadmissible the application.

Lawrence Early Lech Garlicki
Registrar President