FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 68175/01, 68928/01, 69327/01, 13944/02 
Barrow and Others 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 13 December 2005 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 applications lodged on 29 March 2001, 14 March 2001, 20 March 2001 and 28 July 2001,

Having regard to the partial decision of 10 September 2002,

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

Having deliberated, decides as follows:

THE FACTS

A.  Mr Barrow (Application no. 68175/01, lodged on 29 March 2001)

The applicant, Mr Norman Barrow, is a British national who was born in 1930 and lives in Stoke-on-Trent.

His wife died on 11 October 1985.

On 25 June 2000, the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed 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. The claim was finally rejected by the Social Security Appeal Tribunal on 14 February 2001.

B.  Mr Roberts (Application no. 68928/01, lodged on 14 March 2001)

The applicant, Mr Joseph Roberts, is a British national who was born in 1957 and lives in Springfield.

His wife died on 7 October 1999, leaving the applicant and his son, born on 2 March 1984.

On 21 November 2000, the applicant applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 27 November 2000 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 27 February 2001.

C.  Mr McConville (Application no. 69327/01, lodged on 20 March 2001)

The applicant, Mr Michael McConville, is a British national who was born in 1934 and lives in Belfast. He is represented before the Court by Campbell McKee, solicitors.

His wife died on 20 June 1985, leaving two children aged 8 and 4. Shortly after her death, the applicant contacted the Department of Health and Social Security by telephone to see whether any widowers' benefits would be available. He was informed that there were no benefits available to him because he was a man.

He subsequently made a claim for widowers' benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 5 September 2000 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 to the Social Security Appeal Tribunal was rejected on 9 November 2000.

D.  Mr Kelly (Application no. 13944/02, lodged on 28 July 2001)

The applicant, John Kelly, is a British national who was born in 1935 and lives in Cheshire.

His wife died on 23 September 1998. His claim for widow's benefit was rejected by the Department of Health and Social Security on 8 September 2000 on the ground that, as a man, he was not eligible for the benefits. His appeals to the Appeal Service of the Department were refused in April and July 2001 respectively.

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.

A.  Mr Barrow

The Court observes that, at the date of his claim for Widow's Pension and Payment, the applicant was over the age of 65 and his wife had died more than three months before. Since only women under the age of 65 were eligible for a Widow's Pension and since the deadline for a claim for Widow's Payment was three months after the husband's death, a woman in his position would not have been entitled to either benefit. The applicant cannot, therefore, claim to be a victim of discrimination (see Cornwell v. the United Kingdom, no. 36578/97, decision of 18 June 2002).

B.  Mr Roberts

The Court notes that Mr Roberts did not attempt to claim widows' benefits until 21 November 2000. Had a woman claimed widows' benefits in November 2000 in respect of the death of her husband in October 1999, she would have been told that she was out of time for claiming a Widow's Payment which had to be claimed within three months of the husband's death.

As regards the applicant's claim for Widowed Mother's Allowance, at the time of the claim, the applicant was not in receipt of child benefit in respect of his son, who was then aged 16. Regardless of his sex, therefore, Mr Roberts did not meet the eligibility criteria for Widowed Mother's Allowance. The applicant therefore 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 (see Cornwell).

C.  Mr McConville

As regards the complaint of Mr McConville about the rejection of his request for widowers' benefits by telephone in 1985, the Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with an application within a period of six months from the date on which the final decision was taken. In this connection, the final “decision” was the information given to the applicant by telephone in 1985. However, the application was introduced only on 20 March 2001, that is, more than six months later.

As regards the applicant's claim for benefits made in September 2000, the Court notes that the applicant was 66 years old at the time. A woman applying for a Widow's Pension at that age would have had her claim rejected, because the cut-off point for a Widow's Pension was 65. Since the applicant's wife had died more than three months before the claim, the applicant would not have been entitled to a Widow's Payment, even if he were a woman. Similarly, claims for a Widowed Mother's Allowance can only be back-dated three months. By September 2000 the applicant's children were no longer of an age to entitle a woman in the applicant's position to the benefit.

It follows that the applicant cannot claim to be a victim of discrimination because a woman in his position making a claim for benefits at the same time as he did, would not have been entitled to benefits either (see Cornwell).

D.  Mr Kelly

The Court notes that Mr Kelly's wife died when she was over 60. Had he been a woman, the applicant would not have been eligible for any widow's benefits. The applicant cannot, therefore, claim to be a victim of discrimination (see Cornwell).

For these reasons, the Court unanimously

Declares the applications inadmissible.

Michael O'Boyle Josep Casadevall 
 Registrar President

BARROW v. THE UNITED KINGDOM DECISION


BARROW v. THE UNITED KINGDOM DECISION