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FOURTH
SECTION
CASE OF O’BRIEN v. THE UNITED KINGDOM
(Application
no. 61391/00)
JUDGMENT
STRASBOURG
17 July
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of O’Brien v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61391/00) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Colin Joseph O’Brien (“the applicant”),
on 15 September 2000
- The
applicant was represented by Ms P. Glynn, a lawyer practising in
London. The United Kingdom Government (“the Government”)
were represented by their Agent, Mr C. Whomersley of the Foreign and
Commonwealth Office, London.
- By
a partial decision of 8 October 2002 the Court decided to adjourn the
applicant’s complaint in connection with his claims for Widows’
Benefits, relating to discrimination suffered by him during the
period after the date on which he lodged his “second”
claim for Widows’ Benefits, to adjourn the applicant’s
complaint concerning Widow’s Bereavement Allowance and to
declare the remainder of the application inadmissible.
- Subsequently, under the provisions of Article 29 §
3 of the Convention, the Chamber to which the case had been
allocated, decided to examine the merits of the application at the
same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Bridgend.
-
His wife died on 29 April 1999 leaving two children, born in 1989 and
1991.
- In
1999 the applicant enquired about widows’ benefits and he was
informed that he was not entitled to such benefits.
- In
early 2000 the applicant applied for widows’ benefits again and
on 13 March 2000 the Benefits Agency rejected his claim.
- He
lodged an appeal against this decision on 16 March 2000 and this
appeal was struck out on 23 May 2000 on the basis that it was
misconceived.
- On
16 May 2000 the applicant made an oral claim for Widow’s
Bereavement Allowance to the Inland Revenue. On 23 May 2000 he was
informed that his claim could not be accepted because there was no
basis in domestic law allowing widowers to claim this benefit. The
applicant was advised that an appeal against this decision would be
bound to fail.
- The
applicant received child benefit in the sum of GBP 100 per month.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are described in the Court’s
judgments in the cases of Willis v. the United Kingdom, no.
36042/97, §§ 14 26, ECHR 2002-IV;
Hobbs, Richard, Walsh and Geen v. the United Kingdom,
nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007;
and Runkee and White v. the United Kingdom nos. 42949/98
and 53134/99, 25 July 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 AND/OR ARTICLE 8
OF THE CONVENTION.
- The
applicant complained that the United Kingdom authorities’
refusal to pay him the social security and tax benefits to which he
would have been entitled had he been a woman in a similar position,
namely Widow’s Payment (“Wpt”), Widowed Mother’s
Allowance (“WMA”), Widow’s Bereavement Allowance
(“WBA”) and Widow’s Pension (“WP”)
constituted discrimination against him on grounds of sex contrary to
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 and/or Article 8.
Article
14 of the Convention provides:
“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.”
Article
1 of Protocol No. 1 provides:
“1. Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall
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.
2. The preceding provisions shall not,
however, in any way impair the right of a 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.”
Article 8 of the
Convention provides as relevant:
“1. Everyone has the right to respect
for his private and family life...
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 ... the economic well-being of the country...”
A. Widow’s Payment and/or Widowed Mother’s
Allowance
- By
a letter of 12 May 2006 the applicant’s representatives
notified the Court that Mr O’Brien had been offered GBP
12,393.23 in respect of his claims for Wpt and/or WMA including costs
and that he had accepted the offer. By a letter of 16 May 2007 the
applicant’s representatives notified the Court that Mr O’Brien
had received the said payment.
- The
Court takes note of the friendly settlement reached between the
parties in respect of Wpt and/or WMA. It is satisfied that the
settlement is based on respect for human rights as defined in the
Convention and its Protocols (Article 37 § 1 in fine of
the Convention and Rule 62 § 3 of the Rules of Court).
- Consequently,
this part of the application should be struck out of the list.
B. Widow’s Bereavement Allowance
1. Admissibility
- The
Government contested the admissibility of the applicant’s claim
for the tax year 1999/2000 on the basis that he had only made an oral
claim, therefore failing to comply with a domestic requirement.
According to domestic legal provisions, telephone claims could be
accepted from 1998 onwards, but only if they related to the current
year of assessment, namely, the year of assessment in which the claim
was made, or the following year. In the present case Mr O’Brien’s
claim for the tax year 1999/2000 referred to a previous year of
assessment. Consequently, the applicant cannot claim to be a victim
of the alleged violation.
- The
applicant submitted that the Court should not differ from its holding
in White v. the United Kingdom ((dec.), no.53134/99) in
which it rejected the Government’s plea regarding benefit
claims not made in the proper format. Indeed there were no reasons
why claims for WBA could not be treated on a par with claims for
other bereavement benefits.
-
The Court recalls that 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 (see White, cited above). The Court finds
that in the present case the applicant made clear such intention for
both years of assessment, whether in writing or orally, and he can
accordingly claim to be a victim of a violation of the Convention for
the purposes of Article 34.
- The
Court finds that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention, or inadmissible
on any other grounds. It must therefore be declared admissible.
2. Merits
- The
Court has previously examined cases raising issues similar to those
in the present case and found a violation of Article 14 of the
Convention taken in conjunction with Article 1 of Protocol No. 1
(Hobbs, Richard, Walsh and
Geen, cited above, §§ 53-54).
- The
Court has examined the present case and finds that the Government
have not presented any facts or arguments which would lead to any
different conclusion in this instance. Therefore the Court considers
that the difference in treatment between men and women as regards
entitlement to WBA, of which the applicant was a victim, was not
based on any “objective and reasonable justification”
(see Hobbs, cited above, § 53).
- There
has accordingly been a violation of Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1.
C. Widow’s Pension
- 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 WP 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant left it to the Court to grant any financial compensation
considered equitable.
- The
Government did not make any submissions on that point.
- In its lead judgment regarding WBA the Court found no
reason to remedy the inequality of treatment by “levelling up”
and awarding the value of tax benefits which had been found to be
unjustified. It accordingly made no award in respect of the pecuniary
loss alleged to have been suffered (see Hobbs,
cited above, § 69). Moreover, the Court does not accept that the
applicant was caused real and serious emotional damage as a result of
being denied a tax allowance of the relatively low value of the WBA
(ibid § 72).
- The
Court finds no reason to depart from these findings and consequently
no award can be made under this head.
B. Costs and expenses
- The
applicant also claimed GBP 1,007.80 in respect of costs and expenses,
inclusive of value added tax (“VAT”).
- The
Government did not make any submissions on that point.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation or
violations found, and are reasonable as to quantum, are recoverable
under Article 41 (see, for example, Şahin v. Germany
[GC], no. 30943/96, § 105, ECHR 2003-VIII). On the
basis of the information in its possession and taking into account
that the issues concerning WBA were established in Hobbs
(cited above) the Court awards the applicant EUR 600 for legal costs
and expenses, in addition to any VAT that may be payable.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to strike out the applicant’s
complaints concerning non-entitlement to a Widow’s Payment
and/or Widowed Mother’s Allowance;
2. Declares admissible the applicant’s
complaint under Article 14 of the Convention taken in conjunction
with Article 1 of Protocol No. 1 concerning non-entitlement to a
Widow’s Bereavement Allowance and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1 in connection with the applicant’s complaint concerning
non-entitlement to a Widow’s Bereavement Allowance;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amount to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR
600 (six hundred euros) in respect of costs and expenses;
(ii) any
tax that may be chargeable on the above amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
