European Court of Human Rights

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11872/04
by William OWEN
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 9 September 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 24 March 2004,

Having regard to the decision to communicate this application and to join it to other applications (nos. 28067/02, 28087/02, 14401/03, 17233/03, 22361/03, 26083/03, 27988/03, 30242/03, 35695/03, 4839/03, 345/04, 26218/04, 36534/04, 5069/04, 1503/05, 18566/05),

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 William Owen, is a British national who was born in 1943 and lives in Cheshire. He was represented before the Court by Mr Richard Atkinson, a welfare rights worker in Birkenhead. 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 20 March 2001. He claimed widows’ benefits on 4 February 2002 and again on 31 January 2002. His claim was rejected on 13 February 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 8 August 2002 the applicant appealed and the decision was confirmed on 27 March 2003 and again on 27 August 2003. Leave to appeal out of time was rejected on 3 October 2003. 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 including as a result of the statutory cut-off date, 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 finds that, even assuming that the application is not out of time in view of the six months rule, the application is inadmissible for the following reasons.

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: of relevance to the instant case, after 1997 a widow had to make a claim for Widow’s Payment (“Wpt”) within three months of her husband’s death.

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 Wpt made on 4 February 2002 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.

The Court further notes that the applicant has provided no evidence of having children or of being in receipt of child benefit, and has made no express claim for Widowed Mother’s Allowance.

Regarding Widow’s Pension (“WP”), the Court held in its lead judgment 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, the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In so far as his complaints are related to the non-payment of the new benefits introduced in April 2001, the Court has already held in the case of Twizell v. the United Kingdom (no. 25379/02, 20 August 2008), that the introduction of the new benefits was intended to correct the undesired discriminatory situation created amongst the widowed part of the population prior to 2001 and therefore the resultant difference in treatment caused by the non-retrospective effect of the operative date – 9 April 2001 - pursued a legitimate aim. The fact that an applicant’s wife, who died almost immediately before the entry into force of the new system, could not qualify, was an inevitable consequence of introducing new systems which replace previous and outdated schemes. The choice of a cut-off date when transforming social security regimes must be considered as falling within the wide margin of appreciation afforded to a State when reforming its social strategy policy and in such cases the impugned cut-off date can be deemed reasonably and objectively justified (see Twizell, cited above, § 24). The Court, consequently, considering it was not necessary to examine separately the complaint in respect of Article 8, found the complaint to be manifestly ill-founded (ibid § 25).

Accordingly it follows that the complaint in the instant case is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Accordingly, and having regard to the above conclusions, Article 29 § 3 of the Convention should no longer apply to the case.

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