European Court of Human Rights

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4839/03
by John McCANN
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 30 January 2003,

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, 345/04, 11872/04, 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 John McCann, is a British national who was born in 1944 and lives in Kilbride. He was represented before the Court by Ross Harper, solicitors in Glasgow. 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 26 January 2000. At the time the applicant attempted to claim widows’ benefits. His claim for widows’ benefits was made on 8 February 2003 and was rejected on 13 February 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed on 8 July 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, 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

In relation to any claim for benefits made by the applicant at some earlier date, closer to his wife’s death, the applicant’s complaints about the refusal to pay him benefits at that time are inadmissible under the six months rule and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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 in 2003 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 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.

On 13 August 2007 the applicant’s representatives informed the Court that the applicant only intended to pursue his claim for Wpt since the complaint regarding entitlement to a Widow’s Pension (“WP”) had already been decided by the Court in the case of Runkee and White (cited above). On 24 August 2007 the Registry of the Court sent the applicant’s representative a letter stating that following their request, the Court might conclude that the applicant no longer wished to pursue his claim for WP. In the light of the above, in accordance with Article 37 § 1 (a) of the Convention, the Court considers that the applicant does not intend to pursue this complaint. Furthermore, the Court finds no special circumstances regarding respect for human rights as defined in the Convention or its Protocols which require the continuation of the examination of this complaint.

Accordingly, the remainder of the application should be struck out of the Court’s list of cases.

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 applicant’s complaint regarding non-entitlement to a Widow’s Payment;

Decides to strike the remainder of the application out of its list.

Lawrence Early Lech Garlicki
Registrar President