Willis v United Kingdom
| Judgment Date | 11 June 2002 |
Human Rights – Social security – Widow’s allowances – Widowers not entitled to benefits available to widows in respect of death of husband under old social security regime – Applicant a widower – Applicant refused widow’s allowances – Whether allowances amounting to property right – Whether differences in treatment objectively justified – Whether violation of applicant’s Convention rights – Whether applicant having effective remedy in domestic courts –Human Rights Act 1998, Sch 1, Pt 1, arts 8, 13, 14, First Protocol, art 1.
The applicant was married in 1984. He and his wife had two children, who were born in 1989 and 1990. His wife subsequently died of cancer in 1996. Prior to her death, the applicant’s wife had been the primary breadwinner, and had paid full social security contributions as an employed earner until 1994. After her death, the applicant had applied to the benefits agency for benefits equivalent to those which a widow, in similar circumstances, would have been entitled to receive, namely a widow’s payment, pursuant to s 36 of the Social Security and Benefits Act 1992, and a widowed mother’s allowance pursuant to s 37 of that Act. Those benefits were paid out from the national insurance fund, and required the deceased husband to have satisfied certain specified social security contribution conditions, which were set out in a schedule to the 1992 Act. Pursuant to s 38 of the 1992 Act, a widow who ceased to be entitled to a widowed mother’s allowance would, subject to certain conditions including the contribution conditions set out in the schedule to the Act, be entitled to a widow’s pension. By a letter of 18 November 1996, the benefits agency informed the applicant that the benefits he had claimed did not exist for widowers, and that accordingly his claim could not be accepted as valid. The applicant lodged a statutory appeal with the Social Security Tribunal. That tribunal declined jurisdiction on the basis that no appealable decision had been made. The applicant applied to the European Court of Human Rights, complaining: (i) that the refusal of the respondent state to pay him benefits to which he would have been entitled had he been a woman in a similar position, constituted discrimination against him and his deceased wife contrary to art 14 of the Convention, taken in conjunction with the right of protection of property pursuant to art 1 of the First Protocol to the Convention and the right to respect for his private and family life pursuant to art 8 of the Convention; (ii) a similar complaint regarding his future non-entitlement to a widow’s pension; and (iii) that he had been denied an effective domestic remedy contrary to art 13 of the Convention.
Held: (1) Having regard to the jurisprudence of the Court, social security benefits which were linked to the payment of contributions were capable of constituting pecuniary rights for the purposes of art 1 of the First Protocol. In the instant case, the widow’s payment and widowed mother’s allowance were sufficiently pecuniary rights to fall within the ambit of art 1 of the First Protocol. The fact that the statutory conditions required the payment of contributions by the applicant’s wife, and not the applicant, was not significant to that determination. The refusal to recognise the applicant as being entitled to those benefits had been based solely on the grounds of sex. It followed that art 14 was engaged. It was therefore necessary to consider whether that difference in treatment had an objective and reasonable justification. Whilst contracting states enjoyed a certain margin of appreciation in assessing whether, and to what extent, differences in otherwise similar situations justified a different treatment, very weighty reasons were required before a difference in treatment based exclusively on sex could be compatible with the Convention. In the instant case, the applicant’s wife had paid national insurance contributions in the same way as a man in her position would have done. However, the applicant was entitled to significantly fewer benefits than a widow in his position would have been. The difference in treatment between men and women as regarded entitlement to the widow’s payment and widowed mother’s allowance, of which the applicant was a victim, was not based on any ‘objective and reasonable justification’. There had, accordingly, been a violation of art 14 taken in conjunction with art 1 of the First Protocol.
(2) With regard to the widow’s pension, even if the applicant had been a woman, he would not currently qualify, and might never qualify for that benefit, since there was no guarantee that the conditions set out in the 1992 Act would ever be fulfilled. A widow in the applicant’s position would not qualify for the pension until at least 2006, and might never qualify. The applicant had not, therefore, been treated differently to a woman in an analogous position, and no issue of discrimination contrary to art 14 arose. In those circumstances, it was unnecessary for the Court to consider whether the applicant’s complaints regarding the widow’s benefit fell within the scope of art 1 of the First Protocol.
(3) Having examined the applicant’s complaints that he had been discriminated on the ground of sex, taken in conjunction with art 1 of the First Protocol to the Convention, it was unnecessary for the Court to go on to consider his complaints in that regard taken in conjunction with art 8 of the Convention.
(4) The applicant’s case that the decision to refuse him the various benefits also discriminated against his late wife did not raise any issues separate from those raised in respect of the discrimination alleged to have been suffered by the applicant himself. It was not therefore necessary to consider that aspect of the complaint.
(5) Article 13 did not go so far as to guarantee a remedy allowing a contracting state’s primary legislation to be challenged before a national authority on the ground that it was contrary to the Convention. The facts of the instant case therefore disclosed no violation of art 13 of the Convention.
Cases referred to in judgmentFredin v Sweden (1991) 13 EHRR 784, [1991] ECHR 12033/86, ECt HR.
G v Austria (1984) 38 DR 84, E Com HR.
Gaygusuz v Austria (1996) 23 EHRR 365, [1996] ECHR 17371/90, ECt HR.
James v UK (1986) 8 EHRR 123, [1986] ECHR 8793/79, ECt HR.
Jordan v UK [2000] ECHR 30280/96, ECt HR.
Lustig-Prean and Beckett v UK (1999) 7 BHRC 65, ECt HR.
Muller v Austria (1975) 3 DR 25, E Com HR.
Nikolova v Bulgaria [1999] ECHR 31195/96, ECt HR.
R (on the application of Hooper) v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin), [2002] All ER (D) 193 (Feb).
Smith and Grady v UK (2000) 29 EHRR 493, [2000] ECHR 33985/96, ECt HR.
Van Raalte v Netherlands (1997) 24 EHRR 503, [1996] ECHR 20060/92, ECt HR.
ComplaintOn 24 April 1997, the applicant, Kevin David Willis, complained to the European Court of Human Rights alleging that English social security legislation discriminated against him and his late wife on the grounds of sex in violation of art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998), taken in conjunction with both art 8 of the Convention and art 1 of the First Protocol to the Convention. The application was allocated to the Third Section of the Court, which, by a decision of 11 May 1999, declared the application admissible. The facts are set out in the judgment of the European Court of Human Rights.
Procedure1. The case originated in an application (no 36042/97) against the United Kingdom of Great Britain and Northern Ireland (the United Kingdom) lodged with the European Commission on Human Rights (the commission) under art 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) on behalf of a British national, Mr Kevin David Willis (the applicant), on 24 April 1997.
2. The applicant was represented by Mr S Wright, a legal officer with the Child Poverty Action Group, London. The United Kingdom Government (the government) were represented by their agent, Mr CA Whomersley.
3. The applicant alleged that British social security legislation discriminated against him and his late wife on grounds of sex, in breach of art 14 of the Convention taken in conjunction with both art 8 of the Convention and art 1 of Protocol No 1 (as set out in Sch 1 to the Human Rights Act 1998).
4. The application was allocated to the Third Section of the court (r 52(1) of the Rules of Court). Within that section, the Chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1) of the Rules of Court.
5. By a decision of 11 May 1999 the Chamber declared the application admissible.
6. On 1 November 2001, following the new composition of the court’s sections, the application was re-allocated to the Fourth Section of the court (r 52(1) of the Rules of Court). Within that section, the Chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1) of the Rules of Court.
The facts I. The circumstances of the case7. The applicant is a British citizen, born in 1956 and resident in Bristol.
8. The applicant was married in December 1984 to Marlene Willis. There are two children of the marriage, Natasha Uma, born 24 March 1989, and Ross Amal, born 2 August 1990. Mrs Willis died of cancer on 7 June 1996, aged 39 years. The applicant is the administrator of his late wife’s estate.
9. Mrs Willis was employed as a local authority housing officer. For the greater part of their married life, Mrs Willis was the primary breadwinner. She paid full social security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person incapable of work. The applicant gave up work to nurse his wife and care for their children on 3 November 1995. Following his wife’s...
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