European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39596/05
by Thomas John HOOPER
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 2 November 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Thomas John Hooper, is a British national who was born in 1958 and lives in Cardiff. He was represented before the Court by Mr R. Khan, a lawyer practising in Cardiff.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant’s first wife died on 17 December 1986. They had two children from the marriage born in 1984 and 1986. In 1987 the applicant applied for widows’ benefits and was informed that he was not entitled to these benefits as he was a man.

On 10 February 1990 the applicant married his second wife. She died on 27 March 1997, leaving one child born in 1991. He has been in receipt of income support since 1997. His claim for widows’ benefits was made in April 1997 and was rejected in May 1997 on the ground that he was not entitled to widows’ benefits because he was not a woman.

On 10 May 2000 the applicant reapplied for widows’ benefits and on 26 May 2000 he was informed that the benefits agency refused to consider his claim. By a letter of 1 June 2000 the applicant challenged this rejection. By a letter of 10 August 2000 he was informed that his only redress was by way of judicial review in the High Court. The applicant initiated judicial review proceedings which were dismissed on 14 February 2002. The applicant appealed and on 18 June 2003, the Court of Appeal accepted that his Convention rights had been breached but did not award damages. Both parties appealed and on 5 May 2005 the House of Lords accepted that the applicant’s Convention rights had been infringed. However it rejected his claims because the Secretary of State had no power to make extra-statutory payments.

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 claims for benefits made by the applicant at some earlier date, closer to his first and second wives’ death (1986 and 1997), 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: before/after 1997, a widow had to make a claim for Widow’s Payment (“Wpt”) within twelve/three 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/three 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 Wpt made in 2000 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.

As to WMA, the Court recalls that, in accordance with Article 34 of the Convention, it may receive applications only from persons “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. A person can claim to be a victim of a particular measure only if he or she is directly affected by it (see, amongst many other authorities, the Norris v. Ireland judgment of 26 October 1998, Series A no. 142, § 30). The Court notes that the applicant received income support and had not suffered financial loss through not receiving WMA. In these circumstances, the applicant cannot claim to be directly affected by the alleged discrimination between men and women or to be a victim of a violation of the Convention.

It follows that this complaint 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.

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.

For these reasons, the Court unanimously

Declares inadmissible the application.

Lawrence Early Lech Garlicki
Registrar President