England and Wales High Court (Administrative Court) Decisions

STATUTORY PROVISIONS

ISSUES

(1) Does the difference in treatment between widows and widowers in relation to Widow’s Payment and Widow’s Pension constitute discrimination under Article 14 read with Article 8 or Article 1 of the First Protocol of the European Convention on Human Rights? The defendant accepts that there was discrimination under Article 14 read with Article 8 in relation to Widowed Mother’s Allowance.

(2) Were the claimants “victims” within the meaning of section 7 of the HRA 1998?

(3) Is the difference in treatment between widows and widowers in relation to Widow’s Pension objectively justified? (Mr. Naylor’s claim).

(4) Is the Government to be afforded a reasonable period for reform (the so-called Walden point)?

(5) Was there discrimination within the meaning of Article 14 between widowers who brought claims, which were settled in Strasbourg and the widower claimants in the instant case?

(6) Was a refusal to settle these claims irrational or unfair?

(7) Can the provisions of the 1992 Act be interpreted pursuant to Section 3 of the HRA 1998 to entitle both widows and widowers to benefits?

(8) To what extent does the HRA1998 have retrospective effect?

(9) Did the defendant act unlawfully in refusing to make extra-statutory payments, contrary to Section 6(1) of the HRA 1998?

FIRST ISSUE: IS THERE DISCRIMINATION CONTRARY TO ARTICLE 14 READ WITH ARTICLE 8 IN RELATION TO WIDOW’S PAYMENT AND WIDOW’S PENSION?

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety and the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“There remains a more general argument advanced by the Government, in that the United Kingdom was not in violation of Article 14 by reason of the fact that it acted more generously in some respects….than the Convention required. The Court cannot accept this argument. It would point out that Article 14 is concerned with the avoidance of discrimination in the enjoyment of the Convention rights insofar as requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 includes, in general, cases where a personal group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.” (see paragraph 82).

“The court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life”. (paragraph 34).

“In the instant case, however, the right asserted by Botta, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns inter-personal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the state was urged to take in order to make good the omissions of the private bathing establishments in the applicant’s private life”. (paragraph 35, page 258).

“that the relevant legislation, insofar as it seemed to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life”. (see page 81).

“From 9 April 2001, there will be new bereavement benefits for husbands and wives under retirement age. Widows and widowers claim a tax-free £2,000 payment….of course the last thing you want to think about is the death of your loved one. But it makes sense to understand how the new bereavement benefits will affect you and see how it can be built into your pension and life insurance plan. By seeking advice now, you can plan for a more secure future”.

FIRST ISSUE: DOES REFUSAL TO PROVIDE WIDOW’S PAYMENTS AND WIDOW’S PENSIONS FALL WITHIN ARTICLE 1 OF THE FIRST PROTOCOL?

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding paragraph shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

“applies only to a person’s existing possessions and does not guarantee the right to acquire possessions”. (see Marckx para 50, page 350)).”

“39. ……. entitlement to (emergency assistance) is therefore linked to the payment of contributions to the unemployment insurance fund, which is a pre-condition for the payment of unemployment benefit. It follows that there is no entitlement to emergency assistance if such contributions have not been made.

40. In the instant case, it has not been argued that the applicant did not satisfy that condition; a refusal to grant him emergency assistance was based exclusively on the fact that he did not have Austrian Nationality...

41. The court considers that the right to emergency assistance – insofar as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No.1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay “taxes or other contributions”.”

“decisive of his pecuniary rights, in particular the entitlement to the ‘veteran benefit’, i.e. a specific sum of money”. (see page 5)

It continued:

“…the court observes that the applicant’s complaint is not limited to the question of whether or not Polish law operated discriminatorily but also relates to the loss of financial benefits attached to ‘veteran status’ which, as the court has found already, are pecuniary rights. The court therefore considers that the complaint falls to be examined under Article 1 of Protocol No.1 read together with Article 14 of the Convention”. (see mutatis mutandis Gaygusuz v Austrial judgment, paragraphs 39 to 41). (page 6).

The Court continued:-

“…The applicant lost the special and privileged 'veteran' status, which had entitled him to an extra allowance in addition to his normal pension…, and some other benefits…the applicant did, however, retain all the rights attaching to his ordinary pension under the general social insurance system. Consequently the applicant’s pecuniary rights stemming from the contributions paid into his pension scheme remain the same.

In these circumstances, the court does not consider that the applicant’s right to derive benefits from the social insurance scheme was infringed in a manner contrary to Article 1 of Protocol No.1 especially as the loss of veteran status did not result in the essence of his pension rights being impaired”. (see page 7).

“Payment of contributions to a social security fund may create a property right protected by Article 1 of Protocol No.1”. (see page 6)

It then referred to paragraph 41 of the Gaygusuz. judgment, which I have already cited. But this was a case where the husband complainant had made contributions and does not assist in determining whether the Court regarded the payment of such contributions as necessary to bring the case within the ambit of Article 1. One month later (in April 2000), the Court considered the entitlement to widow’s benefits of Joanna Schackell, whose partner, whom she had never married, had died. (See Shackell v United Kingdom (Application No. 45851/99)). In that case her partner had made full contributions to the fund and the Court assumed that:-

“The right to widow’s benefits may be said to be a pecuniary right for the purposes of Article 1 of the First Protocol”. (see page 4).

“This aspect of the claim does not raise any issues separate to those raised in respect of the discrimination alleged to have been suffered by the applicant himself. The Court thus concludes that it would not be in the interests of justice to grant the applicant permission to represent his deceased wife in this connection”. (see page 6).

SECOND ISSUE: CLAIMS FOR BENEFIT AND THE VICTIM REQUIREMENT

(2) “The prescribed time for claiming the benefits specified in paragraph (3) is three months beginning any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.

(3) The benefits to which paragraph (2) applies are…….. (g) “widow’s benefit”.

“A person who claims that a public authority has acted or proposes to act in a way which is made unlawful by Section 6(1) may:-

(a) bring proceedings against the authority under this Act in the appropriate Court or tribunal or

(b) rely on the Convention right or rights concerned in any legal proceedings,………………. but only if he is (or would be) a victim of the unlawful act.

(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purpose of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”

“The applicant cannot be said to have been directly affected by the discrimination of which he complains, since a woman in the same position who had made no claim would have had no entitlement to widows’ benefits under domestic law.”

“As appears from the Cornwell decision itself, the precise form in which an applicant indicates his intention to claim benefits is not of importance, the central question being whether the applicant has made clear his wish to claim benefits. The Court finds that in the present case the applicant made clear such intention and that he can accordingly claim to be a victim of a violation of the Convention for the purposes of Article 34”. (see page 6)

(1) In relation to Mr. Hooper there is a dispute as to the time when he wrote letters of claim. Letters, which he asserts he sent, have not been discovered. But I see no reason for doubting his assertions. It is plain that he was making written claims at least by July 1997 but it is not clear to me that he made a written claim within three months of the death of his second wife on 27 March 1997. He is a victim in respect of Widowed Mother’s Allowance from three months prior to the date of his first written claim to benefits, subject to the arguments as to the retrospectivity of the HRA 1998

(2) Mr. Withey’s first claim was made orally in January or February 1997. His earliest full written claim, on Form BW1, was 12 October 2000. An earlier letter dated 5 June 2000 merely enquired about bereavement benefits under the new 1999 Act. But his solicitors did write a letter before action on 29 August 2000. In my judgment that qualifies as a written claim to benefits and accordingly he is not entitled to Widow’s Payment since the claim was more than three months after the death of his late wife on 26 November 1996. He is a victim in respect of Widowed Mother’s Allowance from three months prior to the letter dated 29 August 2000, subject to the HRA retrospectivity issue.

(3) Mr. Martin made a formal written claim on Form BW1 on 2 October 2000 having made an earlier telephone enquiry. That claim was within three months of his late wife’s death on 11 September 2000 so he does qualify as a victim in respect of both Widow’s Payment and Widowed Mother’s Allowance from 12 September 2000, subject to the retrospectivity point.

(4) Mr. Naylor qualifies as a victim in respect of Widows’ Pension from three months from the date of his written application on Form BW1 dated 14 September 2000, subject to the retrospectivity point. He is out of time to claim Widows’ Payment since his late wife died on 2 July 1995.

THIRD ISSUE: WIDOW’S PENSION

THE SECRETARY OF STATE’S ASSERTIONS OF OBJECTIVE JUSTIFICATION

THE RESPONSE OF MR. NAYLOR

“The Contracting States enjoy a margin of appreciation in assessing whether and to what extent difference in otherwise similar situations justify different treatment.

However, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex compatible with the Convention”. (see paragraph 39).

“While Contracting States enjoy a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 requires that any such measure in principle, applies even-handedly, to both men and women unless compelling reasons have been adduced to justify a difference in treatment”. (paragraph 41).

“Very weighty reasons would….have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention.” (see paragraph 41)

“These proposed amendments cannot in themselves be taken as demonstrating that the previous rules were contrary to the Convention. They do however show that the aim of the legislation in question could also have been achieved by applying criteria other than that based on birth in or out of wedlock.”

“The underlying philosophy of human rights legislation is that an individual has a right to be dealt with on his or her own merits and not on the basis of group characteristics.” (322 H-I).

“Human rights values cannot be overridden by business expediency alone. To allow “statistically supportable” discrimination would undermine the intent of human rights legislation which attempts to protect individuals from collective fault. It would also perpetuate traditional stereotypes with all of the invidious prejudices. Whether there was an alternative, which in all the circumstances was practicable must be considered”. (323 i-j)

.

“Most discrimination flows from generalised assumption (of this kind) and not from a single prejudice dependent solely on the sex….of the complainant.”

“As to the United Kingdom’s argument that the vast majority of women receive an old age pension once they have attained the age of 60, suffice it to say that the grant of benefits such as severe disablement allowance or invalid care allowance constitutes, for women who are not yet in receipt of old age pension, despite their having attained the normal retirement age, an individual right which cannot be denied them on the ground that, statistically, their situation is exceptional by comparison with that of most women”. (see paragraph 19, page 768).

THE COURTS’ APPROACH: THE MARGIN OF DISCRETION

“But still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.” (see page 33E).

“Such laws [controlling the use of property] are especially called for and usual in the field of housing, which in our modern society is a central concern of social and economic policies.

In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures. The court will respect the legislator’s judgment as to what is in the general interest unless that judgment be manifestly without reasonable foundation”. (see paragraph 45)

Later it said:-

“The possible existence of alternative solutions does not in itself render the contested legislation unjustified. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way.” (see paragraph 53)

CONCLUSIONS AS TO OBJECTIVE JUSTIFICATION

“Although society’s expectations relating to the role of men and women has been changing during the past 15-20 years, the shift has been a gradual one and it was therefore reasonable and proportionate for the legislation to continue to provide support by way of widow’s pension to widows during this period of social change. “ (see paragraph 22 )

“The Government is under a duty to take reasonable steps to monitor the working of the measure. The Government must view the position periodically. The greater the disparity of impact, the greater the diligence which can reasonably be expected of the Government…. Had the Order, lawful at its inception, become unlawful by 1991?

Here, again, the matter is debatable. As time passed, the persistently adverse impact on women became apparent. But, as with the broad margin of discretion afforded to governments when adopting measures of this type, so with the duty of governments to monitor the implementation of such measures: the practicalities of government must be borne in mind. The benefits of the Order could not be expected to materialise overnight, or even in a matter of months. The Government was entitled to allow a reasonable period to elapse before deciding whether the order had achieved its objective and, if not, whether the order should be placed with some other measure or simply repealed. Time would then be needed to implement any decision. I do not think the Government could reasonably be expected to complete all these steps in 6 years, failing which it was in breach of community law. The contrary view would impose an unrealistic burden on the Government in the present case.”

“with due regard to the needs and resources of the community and of individuals” (see e.g. Johnson v Ireland 9 EHRR 203, paragraph 55, page 220).

“and leads to the state the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53.” (paragraph 58, page 353).

“Having regard to all the circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian state from re-opening legal acts or situations that ante-date the delivery of the present Judgment. Moreover a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effects of those decisions of that court that annul legislation.” (see paragraph 58, page 353).

“may dispense States from questioning the legal acts or situations that antedate judgments of the court, declaring domestic legislation incompatible with the Convention. The same considerations apply where a Constitutional Court annuls domestic legislation as being unconstitutional (see Marckx…). Moreover, it has also been accepted in view of the principle of legal certainty that a Constitutional Court may set a time limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period…”. (see pages 6-7)

FIFTH ISSUE: DISCRIMINATION AS BETWEEN WIDOWERS WHO BRING CLAIMS IN THE EUROPEAN COURT OF HUMAN RIGHTS AND THOSE WHO CLAIM THROUGH THE DOMESTIC COURTS.

“As you know, the Government has secured friendly settlement in two cases recently. Nevertheless there is no statutory basis to make payments of Widow’s Benefits to men and the Government’s obligation, following the European Court of Human Rights’ finding that the cases are admissible, is to future widowers..

There are no plans to make extra-statutory payments before the new bereavement benefits are introduced other than to those widowed fathers who take cases to the European Court of Human Rights and obtain an admissibility ruling.”

ARE THE CLAIMS WITHIN THE AMBIT OF ARTICLE 8?

ARE THE CLAIMS WITHIN THE AMBIT OF ARTICLE 6 OR ARTICLE 1 OF THE FIRST PROTOCOL?

“The court must ascertain whether (the judgment at issue)…had given rise to a debt in their favour that was sufficiently established to be enforceable”.

“It would be artificial to emphasise the similarities between these groups of claimant and to ignore the distinctions between them for the purposes of Article 14” (see para 71, page 239).

“A personal characteristic (status) by which persons or groups of persons are distinguishable from each other”. (see Kjeldsen, Busk Madsen and Pedersen v Denmark [1975] 1 EHRR 711)

“on any ground such as” (my emphasis).

They point out that in National and Provincial the Court made no reference to the absence of any personal characteristic capable of founding the claim of discrimination. In St Brice the ground of discrimination complained of did not, say the claimants, turn on any characteristic of the complainant tenant at all but rather upon the choice of the landlord as to the forum in which to take possession proceedings. National and Provincial does not appear to have been cited to the Court of Appeal in St Brice. But nevertheless I feel compelled in the light of those two decisions to follow the general principle enunciated by the Court of Appeal. In those circumstances, the absence of any personal characteristic founding the claim for discrimination under Article 14 affords an additional ground for rejecting the contention that the two groups of litigant widowers were in an analogous situation for the purposes of Article 14.

SIXTH ISSUE: THE RATIONALITY OF DRAWING A DISTINCTION BETWEEN THE GROUPS OF WIDOWERS

“I wholly accept the proposition that if a test case is in progress in a Public Law Court, others who are in similar position to the parties should not be expected themselves to begin proceedings in order to protect their positions. I say this for two reasons. First, it would strain the resources of the Public Law Court to breaking point. Second, and perhaps most important, it is a cardinal principle of good public administration that all persons who are in a similar position should be treated similarly. Accordingly, it could be assumed that the result of the test case would be applied to them by the authorities concerned without the need for proceedings and that, if this did not in the event occur, the court would regard this as complete justification for a late application for Judicial Review”. (see page 6).

THE HUMAN RIGHTS ACT 1998

SEVENTH ISSUE: INTERPRETATION OF SECTIONS 36, 37 and 38 OF THE SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

EIGHTH ISSUE :NON-RETROSPECTIVE EFFECT OF THE 1998 ACT

“Paragraph (b) of sub-section (1) of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section”.

NINTH ISSUE: WAS THE DEFENDANT ACTING UNLAWFULLY (THE EFFECT OF SECTION 6 OF THE HRA 1998).

“Sub-section 1 does not apply to an act if –

(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

“Primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights.”

“If any exercise of the power would involve a breach of Convention rights, the position is covered by the second part of the exception in Section 6(2)(b)……”

“In my opinion, however, the question whether or not the prosecutor was giving effect to Section 433 of the 1986 Act within the meaning of Section 6(2)(b) does not depend on whether he had a discretion as to whether or not to use these answers in evidence. The question is whether, having decided to use the answers and invite the judge to hold them to be admissible, he is doing what he was authorised to do by Section 433. It seems to me that there can only be one answer to this question. According to the traditional rules of construction by reference to which at the time that provision was to be interpreted, Section 433 authorised him to lead and to rely on that evidence. He was entitled also to give effect to Section 433 by asking the judge to hold that in terms of that section, the evidence was admissible.” (see paragraph 88).

“We do not think it is legitimate to read down a legislative provision so as to extinguish it.”

CONCLUSIONS

(1) that Sections 36 - 38 SSCBA are contrary to Article 14 read with Article 8 of the Convention;

(2) that the claimants were “victims” within the meaning of section 7 of the HRA 1998, once they submitted written claims;

(3) that the defendant has objectively justified the provision of Widow’s Pension;

(4) that there was no unjustifiable discrimination within the meaning of Article 14 between widowers who brought claims in Strasbourg and the widower claimants in the instant cases;

(5) that the policy of reaching friendly settlement in Strasbourg while contesting these cases was not irrational.

(6) That sections 36 - 38 of the 1992 Act cannot be interpreted so as to entitle widowers to Widow’s Payment or Widowed Mother’s Allowance or Widow’s Pension.

(7) that the provisions of the HRA 1998 do not have effect in relation to claims made before 2 October 2000;

(8) that the defendant was not acting unlawfully, contrary to Section 6(1) of the HRA 1998.