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FOURTH
SECTION
CASE OF NELSON v. THE UNITED KINGDOM
(Application
no. 74961/01)
JUDGMENT
STRASBOURG
1 April
2008
FINAL
01/07/2008
This
judgment may be subject to editorial revision.
In the case of Nelson 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 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74961/01) 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 Mr Alan
Nelson (“the applicant”) on 4 October 2001.
- The
applicant was represented before the Court by Ms Jacky Starling, 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 decision of 10 September 2002 the Court decided to
communicate the complaints concerning widows’ benefits and to
declare the remainder of the application inadmissible. Under the
provisions of Article 29 § 3 of the Convention, it
subsequently 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 1953 and lives in Hampshire.
- His
wife died on 28 March 1993, leaving two children born in 1989 and
1991. His claim for widows’ benefits was made in 1996 but no
decision was ever issued.
- His
second claim for widows’ benefits was made on 19 January 1999
and was rejected on 14 February 2000 on the ground that he was not
entitled to widows’ benefits because he was not a woman.
However, the applicant never received this decision and it was only
after contacting the Department of Work and Pensions (“DWP”)
that he received a duplicate copy on 4 April 2001.
- The
applicant did not appeal further as he considered or was advised that
such a remedy would be bound to fail since no such social security
benefits were payable to widowers under United Kingdom law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice is described in the Court’s
judgment in the case of Willis v. the United Kingdom, no.
36042/97, §§ 14 26, ECHR 2002-IV.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 OR 8 OF THE
CONVENTION.
- The
applicant complained that the United Kingdom authorities’
refusal to pay him the social security benefit to which he would have
been entitled had he been a woman in a similar position, namely
Widowed Mother’s Allowance (“WMA”) 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 or Article 8 of the
Convention.
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 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. Widowed Mother’s Allowance
1. Admissibility
- The
Government submitted that the complaint was out of time since it was
introduced more then six months after the final domestic decision
which in the present case was dated January 1999. The Government
noted that the wording of Article 35 § 1 referred to the date
“when the final decision was taken”. They further
submitted that it was up to the applicant to follow up the decision
on his claim in a timely manner.
- The
applicant submitted that after the lack of response to his claim
introduced in 1996, he did not find it strange that no response had
been received to his claim introduced in 1999. In 2001 with the
introduction of the new benefits’ scheme he had been informed
that he would receive a new benefit form. However, it too was never
received. It was only when the applicant contacted the DWP in this
connection that it transpired that a decision had been taken on his
1999 claim, and the decision of 4 April 2001, marked as
duplicate, was the first notification he received in respect of this
claim.
12. The Court recalls that in accordance with Article 35 §
1 of the Convention an application must be introduced within six
months of the date of the “final decision” in the chain
of domestic remedies which have to be exhausted, or where there are
no such remedies, from the date of the act complained of, or
knowledge thereof. An exception may be made to the six-month’
rule in the event of a continuing situation giving rise to a
violation (see Hilton v. the United Kingdom, no. 12015/86,
Commission decision of 6 July 1988, Decisions and Reports (DR)
57, pp. 113-115). The Court has already considered that there is no
such “continuing situation” in cases of this type, since
a widower cannot claim to be a victim of discrimination until he has
applied for benefits and been refused. It has therefore been the
Court’s consistent practice in such cases 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, for example, Barrow and Others
v. the United Kingdom (dec.), nos.
68175/01, 68928/01, 69327/01, 13944/02, 13 December 2005). It further
recalls that in cases were a decision is not pronounced publicly, the
time starts to run on the day following the date on which the
applicant or his representative was informed of this final decision
(see K. C. M. v. the Netherlands, Commission
decision of 9 January 1995, no. 21034/92, Decisions and
Reports (DR) 80-A, p. 88).
- In
the present case the Court is ready to accept that the applicant only
received notification of the said decision on 4 April 2001, and that
the latter constitutes the date of the final decision for the
purposes of the six months rule. Thus, the decision was delivered
less than six months before the date of introduction of the case
before this Court. It follows that the application cannot be rejected
as being out of time.
- 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 (see
Willis, cited above, §§ 41-43).
- The
Court has examined the present case and finds that there are no facts
or arguments from the Government 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 WMA, of which the applicant was a victim, was not based on any
“objective and reasonable justification” (see Willis,
cited above, § 42).
- There
has accordingly been a violation of Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1.
- The
Court, having concluded that there has been a breach of Article 14
of the Convention taken in conjunction with Article 1 of Protocol No.
1 as regards the applicant’s non-entitlement to WMA, does not
consider it necessary to examine separately his complaints in that
regard under Article 14 taken in conjunction with Article 8 (see
Willis, cited above, § 53).
B. Widow’s Pension
1. Admissibility
- The
Court notes that the applicant has complied with the six months rule
for the reasons given above.
- It
further notes that the applicant’s children are now 17 and 19
years of age, and it is possible that a woman in his position would
have ceased to be entitled to Widowed Mother’s Allowance and
become entitled to a Widow’s Pension.
- However,
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 v. the United Kingdom, no.
42949/98, §§ 40-41, 25 July 2007). The Court,
consequently, 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 Widow’s Pension or equivalent
(ibid § 42).
- Consequently,
the 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. Pecuniary damage
- In
respect of pecuniary damage the applicant claimed a total of
17,354.55 British pounds sterling (GBP):
(i) GBP
17,384.55 representing Widowed Mother’s Allowance payments from
27 October 1998 to 9 April 2001 at a rate of GBP 136.65 per week;
(ii) Christmas
bonus of GBP 30 at GBP 10 per annum;
(iii) Interest
calculated at a rate of 8% on the above amounts.
- The
Government did not make any submissions on the claim.
- The
Court considers that the interest rate applied, which is intended to
compensate for loss of value of the award over time, should reflect
national economic conditions, such as levels of inflation and rates
of interest available to investors nationally during the relevant
period. It considers that the rate determined by the Court in the
case of Runkee and White (cited above, § 52)
should apply and that the starting point for interest is taken to be
the date of the Benefit’s Agency’s letter to the
applicant informing him that the claim had been refused.
- In
these circumstances, and making an award on an equitable basis, the
Court awards compensation to the applicant of GBP 20,000
(approximately 26,955 euros) in respect of the refusal to grant him
WMA up to 9 April 2001 as well as interest on that sum.
B. Non-pecuniary damage
- The
applicant claimed GBP 19,500 for the hurt and distress caused by the
alleged violation.
- The
Government contested the claim on the basis of the Court’s
jurisprudence.
- The
Court does not find it established that the applicant was caused
real and serious emotional damage as a result of being denied the
benefit in question. No award can accordingly be made under this
head.
C. Costs and expenses
- The
applicant also claimed GBP 6,079.22 in respect of costs and expenses,
inclusive of value-added tax (“VAT”).
- The
Government contested the claim.
- The
Court reiterates that only legal costs and expenses found to have
been actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see,
among other authorities, Nikolova v. Bulgaria [GC], no.
31195/96, § 79, ECHR 1999-II). On the basis of the information
in its possession and taking into account that the issues concerning
WMA were established in Willis, the Court awards the applicant
EUR 2,500 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
- Decides to declare admissible the complaint
relating to the applicant’s non-entitlement to a Widowed
Mother’s 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 concerning the applicant’s non-entitlement to a Widowed
Mother’s Allowance;
- Holds that it is not necessary to examine
separately the complaint under Article 14 in conjunction with Article
8 of the Convention as concerns the applicant’s non-entitlement
to a Widowed Mother’s 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
amounts to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
26,955 (twenty-six thousand nine hundred and fifty-five euros) in
respect of pecuniary damage
(ii) EUR
2,500 (two thousand five hundred euros) 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 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 1 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
