[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF WAKELING v. THE UNITED KINGDOM
(Application
no. 61395/00)
JUDGMENT
STRASBOURG
8 July
2008
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 case of Wakeling 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 17 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61395/00) 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 a British
national, Mr Anthony Wakeling (“the applicant”), on 15
September 2000.
- The
applicant was represented by Ms P. Glynn, 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 partial decision of 15 October 2002 the Court
decided to adjourn the applicant's complaint in relation to his
claims for Widow's Benefits and Widows' Bereavement Allowance and to
declare the remainder of the application inadmissible. Subsequently,
under the provisions of Article 29 § 3 of the Convention,
the Chamber to which the case had been allocated, 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 1946 and lives in Essex.
- His
wife died on 27 February 2000 having no children.
- On
around 4 April 2000 the applicant applied for benefits equivalent to
those to which a widow, whose husband had died in similar
circumstances to those of his wife, would have been entitled, namely
a Widow's Payment and a Widow's Pension, payable under the Social
Security and Benefits Act 1992 (“the 1992 Act”). He was
informed on 25 April 2000 that the Benefits Agency was unable to
accept his application as a valid claim because there was at that
time no legislation providing an equivalent of the widows' benefits
concerned to widowers. He was told that he had no right of appeal
since his claim had not been considered by a decision-maker.
- In
or around September 2000 the applicant made a claim for Widow's
Bereavement Tax Allowance (“WBA”) to the Inland Revenue
for the years 2000-2001. On 5 October 2000 he was informed that his
claim could not be accepted because there was no basis in domestic
law allowing widowers to claim this benefit.
- On
24 November 2000 the applicant re-applied for WBA and on 28 November
2000 the Inland Revenue replied confirming its decision and asking
the applicant if he wished to appeal.
- On
30 November 2000 the applicant made a further claim for WBA which was
rejected on 25 December 2000.
- On
3 January 2001 the applicant wrote to the Inland Revenue asking for
his appeal claim to be left open pending a domestic decision on the
matter.
- The
applicant received incapacity benefit in the sum of GBP 240.80 per
month.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are described in the Court's
judgments in the cases of Willis v. the United Kingdom, no.
36042/97, §§ 14 26, ECHR 2002-IV;
Hobbs, Richard, Walsh and Geen v. the United Kingdom,
nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007,
and Runkee and White v. the United Kingdom nos. 42949/98
and 53134/99, 25 July 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 AND/ OR ARTICLE
8 OF THE CONVENTION
- The
applicant complained that the United Kingdom authorities' refusal to
pay him the social security and tax benefits to which he would have
been entitled had he been a woman in a similar position, namely
Widow's Payment (“Wpt”), Widow's Bereavement Allowance
(“WBA”) 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 and/or Article 8.
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 of the
Convention 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. Widow's Payment
- By
a letter of 12 May 2006 the applicant's representatives notified the
Court that Mr Wakeling had been offered GBP 3,736.31 in respect of
his claims for Wpt including costs and that he had accepted and
received payment on 26 September 2005. On 20 September 2006 the
applicant's representatives were sent a letter by the Registry
stating that the Court would consider striking the case out of its
list in respect of the claims that had been settled.
- The
Court takes note of the friendly settlement reached between the
parties in respect of Wpt. It is satisfied that the settlement is
based on respect for human rights as defined in the Convention and
its Protocols (Article 37 § 1 in fine of the Convention
and Rule 62 § 3 of the Rules of Court).
- Consequently,
this part of the application should be struck out of the list.
B. Widow's Bereavement Allowance
1. Admissibility
- 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
(Hobbs, cited above, §§
53-54).
- The
Court has examined the present case and finds that the Government
have not presented any facts or arguments 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 WBA, of which the applicant was a victim, was not
based on any “objective and reasonable justification”
(see Hobbs, cited above, § 53).
- There
has accordingly been a violation of Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1.
C. Widow's Pension
- 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, cited above, §§
40-41). The Court, consequently, considering it was not necessary to
examine separately the complaint in respect of Article 8, 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 WP
or equivalent (ibid § 42).
- Consequently,
this 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. Damage
- The
applicant left it to the Court to grant any financial compensation
considered equitable.
- The
Government did not make any submissions on that point.
- In its lead judgment regarding WBA the Court found no
reason to remedy the inequality of treatment by “levelling up”
and awarding the value of tax benefits which had been found to be
unjustified. It accordingly made no award in respect of the pecuniary
loss alleged to have been suffered (see Hobbs,
cited above, § 69). Moreover, the Court does not accept that the
applicant was caused real and serious emotional damage as a result of
being denied a tax allowance of the relatively low value of the WBA
(ibid § 72).
- The
Court finds no reason to depart from these findings and consequently
no award can be made under this head.
B. Costs and expenses
- The
applicant also claimed GBP 852.70 in respect of costs and expenses,
inclusive of value added tax (“VAT”).
- The
Government contested the claim and submitted that a reasonable sum to
pay under this head would be EUR 400 plus VAT.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation or
violations found, and are reasonable as to quantum, are recoverable
under Article 41 (see, for example, Şahin v. Germany
[GC], no. 30943/96, § 105, ECHR 2003-VIII). On the
basis of the information in its possession and taking into account
that the issues concerning WBA were established in Hobbs
(cited above), the Court awards the applicant EUR 600 for legal costs
and expenses, in addition to any VAT that may be payable.
C. 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 strike out the applicant's complaint
concerning non-entitlement to a Widow's Payment;
2. Declares admissible the applicant's complaint
under Article 14 of the Convention taken in conjunction with Article
1 of Protocol No. 1 concerning non-entitlement to a Widow's
Bereavement 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 in connection with the applicant's complaint concerning
non-entitlement to a Widow's Bereavement 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
amount to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 600 (six hundred euros) in respect of costs and
expenses;
(ii) any
tax that may be chargeable to the applicant on the above amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
