John LARKE, Brian HAVARD, Gopal KULKARNI and CABP, BPAWC, SAABP, BPiA v the United Kingdom

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Applications no. 25402/02; 7692/03; 35919/03; 44317/05
by John LARKE, Brian HAVARD, Gopal KULKARNI and CABP, BPAWC, SAABP, BPiA
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 27 April 2010 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,

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

Mr Larke (application no. 25402/02), was born in 1928 and lives in Canada. Having spent a number of years working in the United Kingdom and paying National Insurance contributions, he is in receipt of a United Kingdom State retirement pension. This pension is not up-rated in line with United Kingdom inflation (see Carson and Others v. the United Kingdom [GC], no. 42184/05, 16 March 2010).

Mr Havard (application no. 7692/03), was born in 1926 and lives in Australia. He has received a United Kingdom State retirement pension since 29 January 1991. It is fixed at GBP 62.68 per week and is not up-rated in line with United Kingdom inflation.

Mr Havard wrote to the then Department of Social Security Pensions and Overseas Benefits Directorate in 2000, asking them to index-link his annual Retirement Pension in line with inflation. This was refused on 5 October 2000 by the Secretary of State, on the grounds that before 6 April 1992, or since that date, the applicant was not ordinarily resident in Great Britain. His subsequent appeal was dismissed on 9 November 2000.

In a further Appeal Tribunal hearing, the applicant's appeal was again dismissed and the original decision of the Secretary of State confirmed on 12 July 2001. The decision of the Tribunal records that the applicant's counsel chose expressly not to pursue any point under the Human Rights Act 1998.

On 18 October 2001, the Chairman of The Appeals Service refused permission to appeal against the Tribunal's decision but recommended that the applicant apply directly to the Social Security Commissioner's office to continue with his application, if he so wished.

On 20 January 2003 the Commissioner refused permission to appeal. He noted that the Secretary of State would have preferred the case to have been adjourned pending the decision of the Court of Appeal in Carson, but that the applicant had protested strongly against further deferment. In his decision the Commissioner noted that, since the applicant had specifically chosen not to put forward arguments based on the Human Rights Act before the Tribunal, he was precluded from raising them in his appeal. However, the Commissioner went on to hold that, even if this were not so, the judgment of Stanley Burnton J. in Carson (22 May 202) should be followed. There appear to have been no further proceedings until the applicant bought this current application before the Court.

Mr Kulkarni (application no. 35919/03), was born in 1931 and lives in India. He and his wife (born in 1933) receive a basic State retirement pension which is not up-rated. The applicant states that in 2003 he wrote to the Department of Social Security asking for the pension to be index-linked, but received no reply.

Application no. 44317/05 was lodged by 374 named members of the British Pensioners Association of Western Canada (BPAWC), 6,854 named members of the South African Alliance of British Pensioners (SAABP), 2,355 named members of the British Pensions in Australia (BPiA) and 6,812 named members of the Canadian Alliance of British Pensioners (CABP). The applicants are former United Kingdom residents now living in Canada, South Africa and Australia. Each receives a basic State retirement pension; some also receive a pension under State Earnings-Related Pension Scheme (SERPS). The applicants' pensions are not up-rated because the applicants are not ordinarily resident in the United Kingdom and Canada, South Africa and Australia are not countries with which the United Kingdom has a bilateral agreement providing for up-rating.

The relevant domestic law and practice are set out in Carson and Others, cited above.

The applicants complained that their pensions were not up-rated in line with inflation, whereas pensions in the United Kingdom and certain other countries were up-rated. They all alleged violations of Article 14 of the Convention taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1. Mr Havard and the members of CABP, BPAWC, SAABP, BPiA also alleged violations of Article 8 and Article 1 of Protocol No. 1 taken alone and Mr Havard complained under Articles 6 and 13 of the Convention that the domestic tribunals which determined his complaints were not independent and impartial, being subject to political influence.

The Court observes that the issues arising under Article 8 of the Convention, taken alone and in conjunction with Article 14, have never been raised before the domestic courts. In contrast, it is to be noted that the lead litigant in the Carson and Others case, cited above, pursued her complaints under Article 14 of the Convention and Article 1 of Protocol No. 1 through three tiers of the domestic courts, which gave considered and detailed judgments. The Court therefore concludes that the complaints under Article 8, taken alone and in conjunction with Article 14, are inadmissible for non-exhaustion of domestic remedies.

The applicants' complaints under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 are indistinguishable from those considered in Carson and Others, cited above. In that case, the Court held, inter alia, that the complaint under Article 1 of Protocol No. 1 taken alone was inadmissible, on the ground that this provision did not guarantee the right to acquire possessions or to receive a social security benefit or pension payment of any kind or amount, unless provided for by national law (Carson and Others, cited above, §§ 53 and 57). It further held that there had been no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 since the applicants were not in a relevantly similar position to pensioners living in the United Kingdom or in countries with which the United Kingdom had concluded a bilateral agreement providing for up-rating (Carson and Others, cited above, §§ 83-90). The Court considers that the present applicants' complaints under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 are manifestly ill-founded pursuant to Article 35 § 3 of the Convention, for the reasons set out in Carson and Others and must be rejected pursuant to Article 35 § 4 of the Convention.

Finally, the Court observes that Mr Havard has not substantiated his allegation that the domestic tribunals which examined his claim lacked independence and impartiality. His complaints under Articles 6 and 13 are manifestly ill-founded pursuant to Article 35 § 3 of the Convention and are therefore to be declared inadmissible in accordance with Article 35 § 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> John LARKE, Brian HAVARD, Gopal KULKARNI and CABP, BPAWC, SAABP, BPiA v the United Kingdom - 25402/02 [2010] ECHR 725 (27 April 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/725.html Cite as: [2010] ECHR 725