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FOURTH
SECTION
CASE OF RUNKEE and WHITE v. THE UNITED KINGDOM
(Applications
nos. 42949/98 and 53134/99)
JUDGMENT
STRASBOURG
10
May 2007
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 cases of Runkee v. the United Kingdom and White v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K.
Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T. L. Early, Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
cases originated in two applications (nos. 42949/98 and 53134/99)
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 two British nationals, Mr George Runkee and Mr
Brian White (“the first and second applicants”), on 20
July 1998 and 4 October 1999 respectively.
- The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr C. Whomersley of the Foreign and
Commonwealth Office, London. The applicants were represented by Mr S.
Right, Legal Officer of the Child Poverty Action Group.
- The
applicants complained that, as men, they were not entitled to receive
widows' benefits, including Widow's Pension, equivalent to those
available to comparable bereaved women.
- By
decisions dated 7 June 2001 and 4 April 2002, respectively, the Court
declared the applications admissible. On 9 September 2003 the
applications were adjourned pending the conclusion of related
domestic proceedings (see paragraphs 22-24 below). On 18 May 2005 the
Court invited the parties to submit observations on the merits.
- The
Government and the applicants requested a hearing on the merits, but
the Court decided that it would not be necessary.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
6. The
facts of each case, as submitted by the parties, may be summarised as
follows.
A. Mr Runkee
- Mr
Runkee was born in 1938 and lives in Hull.
- He
married in 1964. He and his wife had three children, born in 1965,
1966 and 1974. On 15 March 1998 his wife died. She had worked full
time for eight years until becoming pregnant and had made full social
security contributions.
- The
applicant notified the Benefits Agency of his wife's death and of his
intention to claim “widowers' benefits” on 31 March
1998. By a letter dated 16 April 1998, the Benefits Agency
informed the applicant that because he was not a woman he was not
entitled to widow's benefits. The applicant lodged a statutory
appeal against this decision on 1 May 1998, but abandoned it
when advised that the appeal was bound to fail.
- At
the time of his application to the Court, Mr Runkee was in receipt of
means-tested statutory benefits, including Income Support and Housing
and Council Tax Benefits. Were he a woman, his entitlement to Widow's
Pension would have been offset against these benefits, to the extent
that, in his present circumstances, he would have received no
additional money in respect of Widow's Pension.
B. Mr White
- Mr
White is a United Kingdom national, born in 1942 and living in
Warrington.
- He
married in 1960. He and his wife had two children, one of whom was
adopted and born in 1955, the other of whom was born in 1968.
- On
8 March 1999 his wife died. She had worked until the birth of
her son in 1968 and had made reduced social security contributions.
- The
applicant notified the Benefits Agency of his wife's death and of his
intention to claim “widowers' benefits” on 10 March 1999.
On 21 June and 8 September 1999, Angela Eagle, a Minister from the
Department of Social Security, wrote to the applicant's Member of
Parliament confirming that as a man he was not entitled to claim
widows' benefits.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Widow's Pensions 1925-2001
- The
following history of the Widow's Pension (“WP”) is taken
from Lord Hoffmann's speech in R. v. Secretary of State for Work
and Pensions ex parte Hooper and Others [2005] UKHL 29,
paragraphs 18-30:
“[WP was] first introduced by the Widows',
Orphans' and Old Age Contributory Pension Act 1925. The Act provided
a pension of 10 shillings a week to any widow whose husband had paid
sufficient contributions. There was no age qualification or time
limit on payment. Widows were as such entitled to support. But during
the Second World War, large numbers of women worked in the armed
forces or civilian employment, replacing men on active service.
Public attitudes to widowhood changed. Sir William Beveridge said in
his 1942 Report on Social Insurance and Allied Services (Cmd 6404,
paragraph 153) that there was no reason why a childless widow should
get a pension for life. If she was able to work she should do so. He
recommended that all widows should be paid a 13 week transitional
allowance to help them adjust to their new circumstances but that
longer term pensions should be confined to widows with dependent
children. The Government did not accept this advice in full. It
considered that an older widow, who had in accordance with convention
stayed at home during a long marriage to look after husband and
children, would often be severely disadvantaged if she was required
to earn her own living. The National Insurance Act 1946 therefore not
only gave effect to Beveridge's recommendations by introducing
[Widowed Mother's Allowance: 'WMA'] and a widow's allowance for 13
weeks after bereavement but also provided WP for widows who were over
50 at the date of the husband's death or who ceased to qualify for
WMA when they were over 40.
The secular trend in the position of women in employment
over the next half century reinforced Beveridge's view that being a
widow should not, as such, entitle one to a pension. More and more
women entered the labour market. But the trend was a slow one and
crude comparisons of the numbers of economically active men and women
are misleading. Far more women than men worked part-time and the
great majority of women were (and remain) unable to escape from the
traditional low-paid activities of cooking, caring and cleaning. So
the trend to equality was counteracted by political pressure from
groups representing widows who claimed that, as the United Kingdom
became more prosperous, benefits for widows should be increased
rather than reduced. The policies pursued by successive governments
were therefore not entirely consistent. The Family Allowances and
National Insurance Act 1956 raised to 50 the age at which a woman
could claim WP after ceasing to be entitled to WMA. On the other
hand, the National Insurance (Old persons' and widows' pensions and
attendance allowance) Act 1970 reduced to 40 the age at which WP
would be payable (at a reduced rate), whether as a result of
bereavement or the cessation of WMA.
In 1985 the government published a Green Paper on Social
Security Reform which pointed out (in paragraph 10.9) that the
current system of benefits dated from days when far fewer married
women worked:
'Today two thirds of all married women with children
over school age, and over a half of widows between 40 and 60, go to
work. The present pattern of benefits nonetheless provides support
without regard to widows' other income, in many cases long after they
have ceased to be responsible for bringing up children. The
Government's view is that it is right to give greater emphasis to
providing for widows of working age who have children to support, and
for older widows less able to establish themselves in work.'
Despite this acknowledgement of changes in social
conditions, the Social Security Act 1986 made relatively modest
adjustments to the system. The 26 week transitional widow's allowance
was abolished and the lump sum [Widow's Payment: 'WPt'] of £1,000
substituted. The age at which WP became payable, whether on
bereavement or cessation of WMA, was raised to 45 and entitlement to
the full rate postponed until 55. These provisions were
subsequently consolidated in the 1992 Act.
The 1986 changes were opposed by a strong lobby on
behalf of widows. But no one suggested in the course of the
Parliamentary debates that WP should be extended to men. It is true
that Cruse, a non-governmental organisation for 'the widowed and
their children', which had taken widowers on board in 1980, said in
their 1986-87 annual report:
'We ... continued to press for a widower's pension,
based on his wife's national insurance contributions, and for an
allowance to be paid to widowed fathers.'
But this pressure does not appear to have persuaded
anyone to raise the question of WP for widowers in Parliament. The
first serious suggestion that widowers should in principle be paid
the same benefits as widows came from the European Commission. There
had been a Council Directive 79/7/EEC in 1978 on 'the progressive
implementation of the principle of equal treatment for men and women
in matters of social security' which expressly excluded survivors'
benefits. In 1987 the Commission produced a proposal for a new
Directive (Com (87) 494 Final). It drew attention in an explanatory
memorandum to a statement of the Court of Justice in Razzouk and
Beydoun v Commission of the European Communities (Cases 75/82 and
117/82), [1984] ECR 1509, 1530, para 16 (a case concerning survivors'
pensions under the Community's own Staff Regulations) that the
principle of equal treatment of men and women 'forms part of the
fundamental rights the observance of which the court has a duty to
ensure.' Article 4 of the draft Directive provided that there should
be no discrimination on grounds of sex in the payment of survivorship
benefits:
'and to this end:
(a) either the recognition on the same terms for
widowers of entitlement to the pensions and other benefits provided
for widows;
(b) or the replacement of widows' benefits by the
creation or extension of a system of individual rights open to all
surviving spouses regardless of sex.'
The House of Lords Select Committee on the European
Communities (Sub-Committee C) held an inquiry into the proposal in
1989. Miss Joan C. Brown, a writer on social security matters, said
in evidence to the Committee that there was no case for paying older
widowers the same pensions as older widows. The only way to produce
equality was to level down. But hasty action would cause real
hardship to large numbers of older widows who had chosen many years
earlier to follow the conventional path of staying home to look after
husband and children:
'the effect of earlier social patterns on women still
have to be worked through. This suggests the need to phase out the
older widow's pension over a long period—in the order of 10-15
years. Without this, there would be a serious risk of poverty among
older widows who had followed the social norms of their day and now
find themselves at a severe disadvantage in a changed world as a
result.'
The Select Committee accepted Miss Brown's evidence and
reported (Session 1988-89, 10th Report, HL Paper 51):
'In the United Kingdom...there might be reluctance to
reproduce for widowers the pension a childless widow can receive
under the national insurance scheme, irrespective of her earnings, if
she is aged 45 or more when her husband dies. This is in recognition
of the difficulty the widow may find in re-establishing herself in
the labour market—whereas a widower's earning ability would not
ordinarily be prejudiced in this way.
The Committee consider that, despite these difficulties,
the concept of equal treatment must require that, eventually, men and
women should be provided with survivors' benefits on the same terms.
Employment patterns are changing and, if it becomes the norm for
married couples to be dependent on the earnings of both partners for
most of their working lives, it will make sense for equal survivors'
benefits to be available. There is also a need to avoid putting
families at a disadvantage if the mother, rather than the father,
becomes the principal breadwinner. It would, however, be perverse to
deprive widows of benefits they still need in the interests of sex
equality. To reduce this danger, a substantial period should be
allowed—at least 15 years—before Member States are
obliged to equalise survivors' benefits. Community law recognises a
principle of 'legitimate expectation' which would support this
approach.'
The Government published its response on 4 April 1990
(Cm 1038). It said at para 15:
'Within the state social security system the Government
do not think there is any merit in introducing a universal state
insurance benefit for widowers on a par with those currently provided
for widows. To extend the current provisions for widows to widowers
would cost about £350 million a year. The available evidence
indicates that widowers are more likely to be in full time work than
widows, are more likely to have higher earnings than widows and are
less likely to have dependent children. As a consequence the
Government have made it clear to the Commission that the equalisation
of survivors' benefits should be removed from this draft directive
entirely.'
In 1991 the Commission withdrew the draft directive
pending further consultation with Member States and there has been no
further European Union initiative on the question.
...[O]ver the next few years the question of paying WMA
to widowed fathers was raised on more than one occasion (see, for
example, a Private Member's Bill introduced by Mr Hartley Booth MP on
13 April 1994 (Hansard HC Debates (6th Series) vol 241, cols 212-213)
and a Written Answer by the Secretary of State for Social Security
(Hansard HC Deb (6th Series) vol 255, 1 March 1995, col 621)). No one
suggested paying WP to widowers or, unsurprisingly, abolishing WP for
widows. Cruse said in evidence in these proceedings that Mr Hartley
Booth's decision to confine his Private Member's Bill to WMA was
'tactical' but the need for such tactics suggests that there would
have been little support for anything more.
The abolition of WP came as part of a wider reform of
survivorship and other social security benefits in the 1999 Act. It
was preceded in 1998 by a Consultation Paper which drew attention to
the fact that, in 1995, 7 out of 10 married women worked compared
with 1 in 8 in 1946. Half of widows under 60 worked and 47% of widows
now had income from occupational pension schemes. The Government took
the view that widows without dependent children no longer needed long
term support. The extension of WP to men was 'not acceptable': it
would cost another £250 million a year and would mean giving
help to people who were, as a class, unlikely to need it.
But the abolition of WP was strongly opposed by some
members of Parliament, partly on the ground that elderly widows were
still disadvantaged compared with men or younger widows and partly on
the ground that WP was a contributory benefit and that it would be a
breach of faith to deny it to the widows of men who had made
contributions and arranged their affairs on the assumption that it
would be available. An opposition amendment deferring the abolition
of WP until 2020 was defeated but the Government agreed that the
changes should not come into force until 9 April 2001 and that the
rights of women bereaved before that date should be preserved.”
B. WP under the Social Security and Benefits Act 1992
- Under
Section 38 of the 1992 Act, a woman who had been widowed was entitled
to a WP if her husband satisfied the contribution conditions set out
in a Schedule to the Act; and
(i)
at the date of her husband's death she was over the age of 45 (40 for
deaths occurring before 11 April 1988), but under the age of 65; or
(ii)
she ceased to be entitled to a WMA at a time when she was over the
age of 45 (40 for deaths occurring before 11 April 1988), but under
the age of 65.
- This
benefit was not payable for any period after the widow remarried or
in which she and a man to whom she was not married were living
together as husband and wife, or for any period in which she was
entitled to a WMA.
C. The position from 9 April 2001
- The
Welfare Reform and Pensions Act 1999 (“the 1999 Act”)
came into force on 9 April 2001. Section 54 introduced the
Bereavement Payment which replaced the Widow's Payment. The same
conditions applied, except that the new payment was available to both
widows and widowers whose spouse died on or after 9 April 2001.
Section 55 introduced the Widowed Parent's Allowance. Identical
conditions applied as for Widowed Mother's Allowance, except that the
new allowance was available to (i) widows and widowers whose spouse
died on or after 9 April 2001 and who were under pensionable age (60
for women and 65 for men) at the time of the spouse's death, and (ii)
widowers whose wife died before 9 April 2001, who had not remarried
and were still under pensionable age on the that day.
- Section
55 replaced WP with a Bereavement Allowance for widows and widowers
over the age of 45 but under pensionable age at the spouse's death,
where no dependent children existed. The deceased spouse had to have
satisfied the relevant contribution conditions and died on or after
9 April 2001. The Bereavement Allowance is payable for 52 weeks
from the date of bereavement, but is not payable for any period after
the survivor reaches pensionable age or remarries or lives with
another person as husband and wife, or for any period for which the
survivor was entitled to Widowed Parent's Allowance.
- Widows
(but not widowers) whose husbands died before 9 April 2001, and who
fulfilled the other conditions of entitlement, continued to be
eligible for WP.
D. Other survivors' benefits under the 1992 and 1999
Acts
- For
details of the relevant legislative provisions, see Hobbs,
Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00,
63475/00, 63484/00 and 63468/00, judgment of 14 November 2006, §§
29-35 and 38-40.
E. The House of Lords' judgment in Hooper and Others
- On
5 May 2005 the House of Lords delivered a unanimous judgment (cited
in paragraph 15 above), in which it found, inter alia, that
the difference in treatment between men and women as regards WP from
2 October 2000 (when the Human Rights Act 1998 came into force)
onwards was objectively justified and involved no breach of
Convention rights.
- Lord
Hoffmann, with whom the other Law Lords agreed, observed that WP had,
for reasons of administrative economy, never been means-tested, but
had been paid to older widows because it was thought that, as a
class, they were likely to be disadvantaged because it had been the
custom for women to give up work when they got married. The same did
not apply to widowers. The question was not, therefore, whether there
was justification for not paying WP to men, but rather whether there
was justification for not having moved faster in abolishing its
payment to women. The history of WP (set out in paragraph 15 above)
demonstrated that the decision to achieve equality between men and
women by levelling down survivors' benefits, subject to vested
rights, was by no means easy or obvious. It was true that by 2000 the
proportion of older women (50-59) who were “economically
active” was 65.9% against 72.5% for men. But those figures had
to be adjusted to reflect greater part-time working by women (44% as
against 9%) and the concentration of women in low-paid occupations.
The comparative disadvantage of women in the labour market had by no
means disappeared.
- It
was permissible under Article 14 of the Convention for States to
treat groups unequally in order to correct “factual
inequalities” between them, and the State enjoyed a wide margin
of appreciation in determining social and economic policy. Once it
was accepted that older widows were historically an economically
disadvantaged class which merited special treatment but were
gradually becoming less disadvantaged, the question of the precise
moment at which such special treatment was no longer justified was a
matter of legislative judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND/OR ARTICLE 1 OF
PROTOCOL No. 1
-
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
8 of the Convention provides:
“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 or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
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.”
A. Widow's Pension
1. The parties' arguments
(a) The applicants
- The
applicants argued that their complaints fell within the ambit of both
Article 8 and Article 1 of Protocol No. 1, and that Article 14
applied since they had been treated less favourably than women in an
analogous situation. The difference in treatment, moreover, lacked
objective and reasonable justification.
- The
Court had repeatedly applied a strict test, requiring very weighty
reasons to justify sexual discrimination, even in cases concerning
inequalities in a welfare system and thus involving issues of social
and economic strategy (see, for example, Van Raalte v. the
Netherlands, judgment of 21 February 1997, Reports of
Judgments and Decisions 1997-I; Wessels-Bergervoet v. the
Netherlands, no. 34462/97, ECHR 2002-IV; Willis v. the United
Kingdom, no. 36042/97, ECHR 2002-IV). It would be retrograde and
would seriously weaken the protection given to the fundamental
principle of equality of treatment between the sexes were the Court
now to adopt an approach allowing a broad margin of appreciation to
States which maintain sex discrimination in the operation of their
social security systems, and the House of Lords in Hooper had
been wrong to allow such a broad margin (see paragraphs 22-24 above).
- Even
where the difference in treatment pursued the aim of positive
discrimination, it would still be necessary for the State to show
that the discriminatory means were reasonably necessary and
proportionate to the aim pursued. The existence of “factual
inequalities” between the sexes, even if proved, did not
without more justify the blanket and unqualified discrimination at
issue, where every widower was excluded from entitlement to the
pension, and every widow who met the qualifying conditions was
entitled, regardless of the individual's financial circumstances. It
was fundamental to the principle of equal treatment that every
individual was entitled to respect as an individual, and should not
be treated as a “statistical unit” on the basis of a
personal characteristic, such as race or sex.
- The
justifications for the inequality found by the Grand Chamber to apply
in Stec did not apply in the present case, since, despite the
fact that there was now no significant factual difference between the
working lives of men and women, the 1998 Act preserved the
discriminatory treatment of widowers bereaved before 1 April 2001.
Moreover, the overwhelming majority of Contracting States provided
social security benefits to bereaved spouses without sex
discrimination, and did so at the time the applications were lodged.
- It
was accepted that Mr Runkee, who was in receipt of means-tested
social security benefits, would not, in his current financial
circumstances, have received more money had he been entitled to WP
(see paragraph 10 above). However, if his circumstances were to
improve and his entitlement to means-tested benefits cease, he would
be less well-off than a woman in his position, who would retain the
right to WP.
(b) The Government
- The
Government asked the Court to follow the House of Lords in Hooper
and Others and its own reasoning in Stec and Others v. the
United Kingdom [GC], nos. 65731/01 and 65900/01, ECHR 2006-...,
to find that the difference in treatment between men and women as
regards WP was reasonably and objectively justified.
- They
also pointed out that a woman receiving the Income Support and other
benefits paid to Mr Runkee would not have been entitled to WP.
2. The Court's assessment
- The
Court considers that the applicants' complaints about the non-payment
to them of WP fall within the scope of Article 1 of Protocol No. 1
(see Stec and Others v. the United Kingdom (dec.) [GC],
nos. 65731/01 and 65900/01, § 54, ECHR 2006- ...). Since Article
14 therefore applies, it is not necessary to decide whether the
complaints also raise an issue under Article 14 taken in conjunction
with Article 8 (see also Willis v. the United Kingdom, §
53, ECHR 2002-IV).
- The
Court recalls that Article 1 of Protocol No. 1 does not include a
right to acquire property. It places no restriction on the
Contracting State's freedom to decide whether or not to have in place
any form of social security scheme, or to choose the type or amount
of benefits to provide under any such scheme. If, however, a State
does decide to create a benefits or pension scheme, it must do so in
a manner which is compatible with Article 14 of the Convention (see
the Stec and Others decision, cited above, §§
54-55).
- Article
14 does not prohibit a Member State from treating groups differently
in order to correct “factual inequalities” between them;
indeed in certain circumstances a failure to attempt to correct
inequality through different treatment may in itself give rise to a
breach of the article. A difference of treatment is, however,
discriminatory if it has no objective and reasonable justification;
in other words, if it does not pursue a legitimate aim or if there is
not a reasonable relationship of proportionality between the means
employed and the aim sought to be realised. The Contracting State
enjoys a margin of appreciation in assessing whether and to what
extent differences in otherwise similar situations justify a
different treatment (see the Stec and Others judgment, cited
above, § 51).
- The
scope of this margin will vary according to the circumstances, the
subject-matter and the background. As a general rule, 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 as
compatible with the Convention. On the other hand, a wide margin is
usually allowed under the Convention when it comes to general
measures of economic or social strategy. Because of their direct
knowledge of their society and its needs, the national authorities
are in principle better placed than the international judge to
appreciate what is in the public interest on social or economic
grounds, and the Court will generally respect the legislature's
policy choice unless it is “manifestly without reasonable
foundation” (op. cit., § 52).
- The
Court notes that the history of WP, as recounted by Lord Hoffmann in
the Hooper and Others judgment (see paragraph 15 above), is
not disputed by the parties to the instant case. The benefit was
first introduced in 1925, in recognition of the fact that older
widows, as a group, faced financial hardship and inequality because
of the married woman's traditional role of caring for husband and
family in the home rather than earning money in the workplace.
Despite the increase in women entering the workforce over the next
sixty years, in 1985, when the Government proposed reforms to the
social security system, it was still considered necessary by
Parliament to provide support to older widows, only half of whom were
in paid employment of any kind. It was not until 1998 that the
Government, in a Consultation Paper, proposed the abolition of WP in
view of the increasing numbers of women in employment or receiving
income from an occupational pension scheme. Even then, the proposal
was strongly opposed by some members of Parliament, partly on the
ground that elderly widows were still disadvantaged compared with men
or younger widows, and partly on the ground that WP was a
contributory benefit and that it would be “a breach of faith”
to deny it to widows of men who had made contributions and arranged
their affairs on the assumption that it would be available. In
response to these views, the draft legislation was amended to
preserve the rights of women widowed before 9 April 2001 (see
paragraph 20 above).
- It
does not appear that at any stage evidence was presented to the
Government or Parliament showing that older widowers without
dependent children, as a group, were similarly disadvantaged and in
need of special financial help, nor has any such evidence been
presented to the Court.
- Since
WP was not means-tested, it is no doubt true, as the applicants
contend, that the pension has been paid to certain widows who were
less in need than individual widowers who were denied it. However,
means-testing can be uneconomical, and any welfare system, to be
workable, may have to use broad categorisations to distinguish
between different groups in need (see, mutatis mutandis,
Lindsay v. the United Kingdom, no. 11098/84, Commission
decision of 11 November 1986, Decisions and Reports 49, p. 181).
- At
its origin, therefore, 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. The Court considers that, in the
light of all the evidence presented to it, this difference in
treatment was reasonably and objectively justified (cf. Willis v.
the United Kingdom, ECHR 2002-IV, where the benefits in question
were designed to ease the financial hardship faced by a spouse in the
immediate aftermath of bereavement and to assist the surviving spouse
bringing up dependent children alone).
- Given
the slowly evolving nature of the change in women's working lives and
the impossibility of pinpointing a precise date at which older widows
as a class were no longer in need of extra help – a topic
debated by Parliament on several occasions during the 1980s and
1990s, whenever reform was proposed – the Court does not
consider that the United Kingdom can be criticised for not having
abolished WP earlier (see, mutatis mutandis, the Stec
judgment, cited above, § 64). Moreover, since it was decided
to bring about equality through “levelling down”, it was
not unreasonable of the legislature to decide to introduce the reform
slowly, by preserving the rights of women widowed before 9 April
2001 (ibid., § 65).
- It
follows that there has been no violation of Article 14 taken in
conjunction with Article 1 of Protocol No. 1 in respect of the
non-payment to the applicants of Widow's Pension or equivalent.
- In
the light of this conclusion, it is not necessary for the Court to
determine whether or not, given the sums he receives in means-tested
benefits, Mr Runkee can claim to be directly affected by the
non-payment of WP (but see Bland v. the United Kingdom (dec.),
no. 52301/99, 19 February 2002).
B. Widow's Payment
44. Mr Runkee and Mr White complained in addition about the
non-payment to them of Widow's Payment.
- The
Court has already held that the non-payment to a widower of Widow's
Payment breaches Article 1 of Protocol No. 1 taken in conjunction
with Article 14 of the Convention (see Willis, cited above, §§
37-43). The Government have not sought to argue that the difference
in treatment between men and women as regards entitlement to this
one-off, lump sum payment intended to assist with additional expenses
in the immediate aftermath of the spouse's death, was based on any
“objective and reasonable justification”, and the Court
sees no reason to distinguish the present applications from Willis.
- Again,
it is not, therefore, necessary to consider whether any issue also
arises under Article 14 taken in conjunction with Article 8 (op.
cit., § 53).
- In
conclusion, there has been a violation of Article 14 of the
Convention taken in conjunction with Article 1 of Protocol No. 1.
II. 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. Pecuniary damage
- In
respect of pecuniary damage Mr Runkee claimed the following amounts
in pounds sterling (GBP):
(i) GBP
1,000 for Widow's Payment;
(ii) simple
interest at 8%, based on the current statutory rate of interest
applicable in the United Kingdom, on arrears of all widow's benefits
found owing to him from 15 March 1998 until the date of judgment;
Mr
White claimed as follows:
(i) GBP
1,000 for Widow's Payment;
(ii) GBP
12,167.17 for WP from 16 March 1999 to July 2005, and continuing;
(iii) simple
interest at 8%, based on the current statutory rate of interest
applicable in the United Kingdom, on arrears of all widow's benefits
found owing to him from 8 March 1999 until the date of judgment.
- The
Government accepted that they should pay GBP 1,000 to each applicant
in respect of Widow's Payment, but rejected Mr White's claim for WP.
They submitted that, as a matter of domestic practice, the Department
of Work and Pensions applied an interest rate based on the yearly
Average Retail Shares and Deposits rate supplied by the Building
Societies Commission when, exceptionally, a welfare clamant had lost
the use of a sum of money as a result of a departmental error. These
rates varied from 4.881%, being the highest, in 1998–1999 and
2.691%, being the lowest, in 2003-2004. The Government calculated
that Mr Runkee should be awarded interest of GBP 266.15 and Mr White
should receive GBP 209.51, to cover the period between the refusal of
each of their claims and the Government's Observations of 26 July
2005, continuing at the rate of GBP 0.09 per day until the date of
judgment or payment, whichever was sooner.
-
The Court, which has found violations in respect of the denial of
Widow's Payment, but no violation because of the lack of WP, awards
each applicant the principal sum of GBP 1,000.
- In
addition, interest can be claimed from the dates on which each
recoverable element of past pecuniary damage accrued (see Willis,
§ 69). In the present cases, since under national law at the
relevant time a widow was not automatically paid the benefit, but had
to claim it and to wait for the Benefits Agency to process her claim,
the Court takes as the starting point for interest the date of the
Benefit's Agency's letter to each applicant informing him that the
claim had been refused. An award of pecuniary damages under Article
41 of the Convention is intended to put the applicant, as far as
possible, in the position he would have enjoyed had the breach not
occurred (see, mutatis mutandis, Kingsley v. the United
Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). The
interest rate applied, which is intended to compensate for loss of
value of the award over time, should therefore reflect national
economic conditions, such as levels of inflation and rates of
interest available to investors nationally during the relevant period
(see, for example, Akkuş v. Turkey, judgment of 9 July
1997, Reports 1997-IV, § 35; Romanchenko v. Ukraine,
no. 5596/03, 22 November 2005, § 30, unpublished; Prodan v.
Moldova, no. 49806/99, § 73, ECHR 2004-III (extracts)). In
the light of these considerations, the Court considers that the rate
proposed by the Government is the more realistic.
- It
therefore awards EUR 2,025 to Mr Runkee and EUR 1,870 to Mr White
in respect of pecuniary damage.
B. Non-pecuniary damage
- The applicants did not claim non pecuniary-damage, and
the Court does not award any.
C. Costs and expenses
- The
applicants jointly claimed GBP 21,237.63 in respect of costs and
expenses, inclusive of value added tax (“VAT”).
- The
Government submitted that it could not be shown that such costs had
indeed been incurred and therefore that the claim should be dismissed
in its entirety. They noted that the applicant's legal
representatives were a campaigning non-governmental organisation, and
that it was unlikely that the applicants would be made to pay such
high fees. In any case, they submitted that the sums put forward were
excessive and unreasonable. Given that the matters at issue had been
extensively aired in domestic proceedings, it was doubtful whether so
many hours had been needed to prepare the case and whether it had
been necessary to instruct a QC for the purposes of these
proceedings.
- According to its settled case-law, the Court will
award costs and expenses in so far as these relate to the violation
found and to the extent to which they have been actually and
necessarily incurred and are reasonable as to quantum (see, among
other authorities, Schouten and Meldrum v. the Netherlands,
judgment of 9 December 1994, Series A no. 304, pp. 28-29, § 78
and Lorsé and Others v. the Netherlands, no.
52750/99, § 103, 4 February 2003). Taking into account all
the circumstances, in particular that it has found no violation as
regards WP, and that the issues concerning Widow's Payment were
established in Willis and were not contested by the
Government, it awards the applicants jointly EUR 2,000 for legal
costs and expenses, in addition to any VAT that may be payable.
D. 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
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 in connection with non-entitlement to a Widow's
Pension;
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1 concerning non-entitlement to a Widow's Payment;
- Holds that it is not necessary to consider
either complaint under Article 14 of the Convention taken in
conjunction with Article 8;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement:
(i) EUR
2,025 (two thousand and twenty-five euros) and EUR 1,870 (one
thousand eight hundred and seventy euros) to the first and second
applicant respectively in respect of pecuniary damage
(ii) EUR
2,000 (two thousand euros) jointly in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the Central Bank during the default
period plus three percentage points;
- Dismisses the remainder of the applicants'
claims for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
