FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 27988/03 and 5069/04 
by Nathan LEMEL and James HUNTER 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 28 March 2006 as a Chamber composed of:

Mr J. Casadevall, President
 Sir Nicolas Bratza
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 13 July 2003,

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

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

A. Mr Lemel (Application no. 27988/03, lodged on 1 December 2003)

The applicant, Mr Nathan Lemel, is a British national who was born on 24 June 1929 and lives in London. He is not represented in the proceedings before the Court.

His wife died on 2 July 1993.

In or around October 2003 the applicant applied to the Benefits Agency for the payment of social security benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled. He was informed by a letter dated 3 November 2003 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows’ benefits were specific to women. At the time of the claim the applicant was not in receipt of child benefit.

B. Mr Hunter (Application no. 5069/04, lodged on 20 January 2004)

The applicant, Mr James Hunter, is a British national who was born on 12 November 1934 and lives in East Kilbride. He is represented by Mr C.S. Fyfe of Ross Harper solicitors, Glasgow.

His wife died on 27 January 1997.

In or around August 2003 the applicant applied to the Benefits Agency for the payment of social security benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled. He was informed by a letter dated 16 August 2003 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows’ benefits were specific to women. His appeal was dismissed by the Appeal Tribunal on 3 November 2003. At the time of the claim the applicant was not in receipt of child benefit.

B.  Relevant domestic law and practice

The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.

THE LAW

The applicants complain under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 that, because they were men, they were not entitled to the equivalent of widow’s benefits.

The Government contest the admissibility of these applications. In respect of Mr Lemel, they assert that although he was widowed in 1993, he did not make a claim for bereavement benefits until 2003, at which point he was over retirement age. A widow in his position would not have been eligible for Widowed Mother’s Allowance or Widow’s Payment. Similarly, they submit that Mr Hunter, who was widowed in 1997 but made no claim for benefits until 2003, applied too late to be eligible for a Widow’s Payment.

In his application form, Mr Lemel made reference only to his application in 2003 to the Pension Service. In a letter to the Court responding to the Government’s observations, he wrote:

“... I note that against my application it was stated ‘no claim in respect of bereavement benefits until 2003’.

This is not true and completely incorrect. The Pensions Office in Newcastle, U.K., was perfectly aware that I made an application for bereavement benefits, not only because of the European award a few years ago, but ... mainly because of the National Health contributions my late wife made to the insurance fund for up to 30 years since leaving school as a teenager over 40 years ago ...”

Mr Hunter submits that the six months rule in Article 35 § 1 should not apply in his case, since he was complaining about the Government’s decision not to amend the law retrospectively to enable him to receive an extra-statutory payment equivalent to a widow’s benefit. This was an on-going failure, and there was no specific decision which he could challenge and from which the six-month period would start to run.

The Court recalls, first, that under Article 34 of the Convention it may receive applications from individuals and others “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”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Cornwell v. the United Kingdom, no. 36578/97, decision of 11 May 1999).

Under the legislation providing for widow’s benefits at the relevant time (see Willis), a widow was not automatically entitled to survivors’ benefits, but had to claim them from the relevant authority. Various time-limits applied: a widow had to make a claim for Widow’s Payment within three months of her husband’s death and a claim for Widowed Mother’s Allowance or Widow’s Pension could be made outside that time-limit, but would be back-dated only three months.

In Cornwell, the Court held that until a man had made a claim to the domestic authorities for bereavement benefits, he could not 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 widow’s benefits until having made a claim (and see also White v. the United Kingdom, no. 53134/99, decision of 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 women 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, decision of 8 September 2001). Finally, in the light of this requirement to notify the authorities of an intention to claim benefits, it has been the Court’s consistent practice in respect of applications by widowers complaining against the United Kingdom about the non-availability to men of widows’ benefits or equivalent, to hold that the six months time-limit in Article 35 § 1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits (see, most recently, Barrow and Others v. the United Kingdom, nos. 68175/01, 68928/01, 69327/01, 13944/02, decision of 13 December 2005).

In respect of Mr Lemel, the Court notes that it is not clear from his application form and observations whether or not he applied for widowers’ benefits at any time before October 2003. However, his application was lodged with the Court on 1 December 2003. If Mr Lemel did apply for benefits at some earlier date, closer to his wife’s death, his complaints about the refusal to pay him benefits at that time would be inadmissible under the six months rule.

At the dates of their claims in 2003 for Widow’s Pension and Payment, the applicants were over the age of 65 and their wives had died more than three months before. Since only women under the age of 65 were eligible for a Widow’s Pension (see Willis) and since the deadline for a claim for Widow’s Payment was three months after the husband’s death, a woman in the same position as the applicants would not have been entitled to either benefit. Widowed Mothers’ Allowance was payable only to women who were claiming child benefit in respect of dependent children. The applicants cannot, therefore, claim to be victims of discrimination.

For these reasons, the Court unanimously

Declares the applications inadmissible.

Michael O’Boyle Josep Casadevall 
 Registrar President

LEMEL AND HUNTER v. THE UNITED KINGDOM DECISION


LEMEL AND HUNTER v. THE UNITED KINGDOM DECISION