R (Wilkinson) v Commissioners of Inland Revenue
| Jurisdiction | England & Wales |
| Judgment Date | 14 February 2002 |
| Neutral Citation | [2002] EWHC 182 (Admin) |
| Docket Number | Case No: CO/970/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2002 |
[2002] EWHC 182 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr. Justice Moses
Case No: CO/970/2001
Miss Dinah Rose and Mr. Philip Baker (instructed by Liberty for the Claimant)
Mr. Timothy Brennan QC and Miss Ingrid Simler (instructed by the Solicitor of Inland Revenue for the Defendant)
Mr Justice Moses:
INTRODUCTION
The claimant is a widower whose wife died on 23 June 1999. By letter dated 13 November 2000, he claimed from the Inland Revenue a sum equivalent to Widow's Bereavement Allowance. He described it as a "widower's bereavement payment". Under Section 262 of the Income and Corporation Taxes Act 1988 (" ICTA") an allowance known as Widow's Bereavement Allowance ("WBA") is available to a widow for the year of assessment in which her husband dies, and the following year. Section 262 makes no express provision for any equivalent reduction in income tax to widowers. By Section 34 of the Finance Act 1999 WBA was abolished in relation to deaths occurring on or after 6 April 2000.
This claim raises issues similar to those raised in the applications of Hooper, Withey and others. Although I heard argument before hearing that case, I have drafted this judgment after drafting the judgment in that case. This judgment should be read in the context of my reasoning and conclusions in that case. This case raises similar issues in relation to discrimination under Article 14 read with Article 1 of the First Protocol of the Convention, the treatment of a claim brought in Strasbourg and as to the provisions of Section 6 of the Human Rights Act 1998.
THE FACTS
Mr Wilkinson was prompted to make his claim because the Government, shortly before, had reached a friendly settlement with another widower, Mr. Crossland. Mr. Crossland brought a complaint in 1997 before the European Commission of Human Rights alleging breach of Article 14 read with Article 8 and Article 1 of the First Protocol. The Government did not contest the admissibility of that claim which was declared admissible on 8 June 1999. Thereafter it reached a friendly settlement paying him a sum representing the full amount he would have been paid had WBA been available to men at the date of his wife's death and the sum of just under £4,000 in legal costs. After Mr. Wilkinson had made his claim on 13 November 2000, on 11 December 2000 the defendants refused his claim asserting that there was no basis in domestic law for allowing widowers to claim WBA.
On 5 March 2001, in response to an invitation to allow Mr. Wilkinson his claim or an extra-statutory equivalent (see letter dated 27 February 2001), the defendants asserted that their care and management powers did not allow them to contradict unambiguous primary legislation, such as the provisions of Section 262. They said:—
"The Board's care and management powers allow us to make relaxations which give taxpayers a reduction in liability to which they are not entitled under the strict letter of the law. Most concessions are made to deal with what are, on the whole, minor or transitory anomalies under the legislation and to meet cases of hardship at the margins of the code where a statutory remedy would be difficult to devise or would run to a length out of proportion to the intrinsic importance of the matter.
……………
The care and management powers do not allow the Inland Revenue to contradict unambiguous, primary legislation, such as the provisions that govern entitlement to WBA. The Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with the Convention right unless it is required to do so by primary legislation."
THE STATUTORY PROVISIONS
Section 262(1) provides:
"Where a married man whose wife is living with him dies, his widow shall be entitled –
(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in Section 257A(1) for that year, and
(b) (unless she marries again before the beginning of it) for the next following year of assessment [to a similar amount]".
No justification for the continuing grant of an allowance up to 6 April 2000 has been offered. But I should mention, briefly, that evidence has been given by Sarah Walker, an Assistant Director of personal tax, which places the allowance in its historical context within the tax system.
WBA was originally introduced to improve equality of treatment, in the context of taxation, between husbands and wives. It was designed to mitigate the effects of a bereaved husband's more favourable treatment under the regime for married couple's allowance. In the past the income of husband and wife was aggregated for income tax purposes on the basis that taxable capacity depended upon the amount of income which accrued to the married couple. Independent taxation of husband and wife was introduced in 1990–1 by the Finance Act 1988. Before independent taxation was introduced, a husband was entitled to a Married Man's Allowance and, if applicable, wife's earned income relief. But on his death a wife would be taxable in her own right and entitled to claim Single Person's Allowance. WBA was introduced to compensate for the fact that if a husband died early in a tax year, his widow would only be entitled to a Single Person's Allowance whereas a husband would continue to receive the higher Married Man's Allowance in the year of his wife's death. It was extended in 1983 to the year of assessment following the year of death because if a husband died towards the end of a tax year, a wife would often not have sufficient income in the remainder of that year to use the allowance in full. After independent taxation had been introduced in 1990 to 1991, tax allowances including Married Couple's Allowance (made available to women by election in 1993–4) and WBA were reduced as the Government began to focus support on children and families. I should emphasise, again, that the historical context of WBA is not offered as a basis for objective justification of the undoubted discrimination between husbands and wives.
ISSUES
This case gives rise to the following issues:—
(1) Whether the grant of WBA to widows but the refusal to provide an equivalent income tax reduction to widowers in identical circumstances on grounds of gender was a breach of Article 14 read with Article 1 of the First Protocol to the Convention;
(2) Whether the defendants have power to afford to the claimant an extra-statutory income tax reduction equivalent to WBA;
(3) Whether the defendants are obliged to grant such a reduction to the claimant pursuant to Section 6(1) of the Human Rights Act 1998 ("the 1998 Act") or whether the defendants' refusal falls within the scope of Section 6(2) of the 1998 Act;
(4) Whether the defendants are obliged, as a matter of fairness, at common law, to give the allowance to widowers in the light of the friendly settlement of Mr. Crossland's case in Strasbourg.
FIRST ISSUE: DISCRIMINATION WITHIN ARTICLE 14
Since this is a separate judgment, it may be convenient to set out again the provisions of Article 14 which provides:—
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex…..or other status".
As I recalled, in my judgment in Hooper, Withey and Others, in order to establish a breach of Article 14, a claimant must establish that the facts of the case come within the ambit of other provisions of the Convention. Article 1 of the First Protocol provides:
"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.
The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary….to secure the payment of taxes or other contributions or penalties".
Although Mr. Brennan QC on behalf of the Inland Revenue argued faintly to the contrary, it seems clear to me that this case falls within the ambit of Article 1 of the First Protocol. It concerns the payment of taxes. Dr. Darby claimed repayment of tax he had paid as a result of discriminatory Church Tax imposed in Sweden in Darby v Sweden 13 EHRR 774. The Court observed that the second paragraph of Article 1 of the First Protocol establishes that the duty to pay tax falls within its field of application. (see paragraph 30, page 781)
It is clear that the refusal to grant an income tax reduction to men in a similar situation to women, is a breach of Article 14 read with Article 1 of the First Protocol in the absence of any objective justification advanced for such discrimination.
EXTRA-STATUTORY CONCESSIONS
The claimant contends that the defendants have power to grant Mr. Wilkinson an extra statutory allowance in the form of a reduction of tax to which he is not entitled under what is described in the skeleton argument (paragraph 44) as "the strict letter of the law". That power is derived from Section 1 of the Taxes Management Act 1970. The exercise of that power is demonstrated by the extra statutory concessions which appear to have numbered 272 by 31 August 1999.
Section 13(1) of the Inland Revenue Regulation Act 1890 imposes a duty upon the Commissioners to:—
"collect and cause to be collected every part of inland revenue, and all money under their care and...
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