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FOURTH
SECTION
CASE OF THORNE v. THE UNITED KINGDOM
(Application
no. 28091/02)
JUDGMENT
STRASBOURG
13 January 2009
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 Thorne 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,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28091/02) 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 Graham Thorne (“the applicant”), on 25
October 2001.
- The
applicant was represented by Royds Rdw, solicitors in London. The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr C. Whomersley of the Foreign and
Commonwealth Office, London
- The
applicant complained under Articles 8 and 14 of the Convention and
Article 1 of Protocol No. 1 that, because he was a man, he was denied
social security benefits equivalent to those received by widows.
- By
a partial decision of 12 November 2002 the Court decided to
communicate the complaints concerning widows' benefits which had been
made within the applicable time-limits. Subsequently, it was 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 1958 and lives in Kent.
- His
wife died on 25 January 2001. He made an oral claim for benefits on
16 February 2001. His formal claim for widows' benefits, namely
Widow's Payment (“Wpt”) and Widowed Mother's Allowance
(“WMA”) was made subsequently, allegedly on 2 March 2001,
and was rejected on 28 June 2001 on the ground that he was not
entitled to widows' benefits because he was not a woman. The
applicant did not appeal 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.
- The
applicant was in receipt of child benefit at the time of his claim.
- Upon
the introduction of the new benefit scheme, as of 8 April 2001 the
applicant started receiving Widowed Parent's Allowance instead of
WMA.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are 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 AND/OR ARTICLE 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 Wpt and
WMA, 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 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. Admissibility of the application
- The
Government submitted that the Department of Work and Pensions had no
trace of a claim ever having been made by the applicant, nor any form
of other documentation evidencing the receipt of the application for
benefits. Consequently, it did not appear that the applicant ever
made a claim and therefore, according to the Court's established
case-law, he was not a victim of the alleged violation.
- The
applicant submitted that although the Department of Work and Pensions
had lost all the documents related to his case, and they had admitted
this, this did not mean that he had never claimed such benefits. He
submitted to the Registry of the Court a copy of his personal diary
which showed a note stating that he had introduced his claim on 2
March 2001. Moreover, he submitted a copy of the rejection letter
from the benefits agency dated 28 June 2001.
- The
Court considers that for the purposes of the present case the
applicant has sufficiently proved that he made a formal
application to the benefits agency. It will further consider that
such claim had been made on 2 March 2001 and therefore within
the domestic time-limits for claiming both benefits. Consequently,
the application is not incompatible ratione personae with the
provisions of the Convention or the Protocols thereto.
- The
Court further finds that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
- The
Court notes that the applicant's complaint in respect of WMA refers
solely to the period between the date of his wife's death and 8 April
2001.
- 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 the instant case. Therefore the Court considers that
the difference in treatment between men and women as regards
entitlement to Wpt and 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 Wpt and WMA, does not
consider it necessary to examine his complaints in that regard under
Article 14 taken in conjunction with Article 8.
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. Damage
- In
respect of pecuniary damage the applicant claimed GBP 1,000 and GBP
1,078.33 equivalent to the amounts due in respect of Wpt and WMA for
the period at issue, respectively. He further claimed interest on the
said sums at a rate of 8 %.
- The
Government did not submit any comments.
- 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) is the more
realistic.
- In
the present circumstances and making an award on an equitable basis,
the Court awards compensation to the applicant of EUR 3,000 in
respect of the refusal to grant him Wpt and WMA up to 8 April 2001 as
well as interest on that sum.
B. Costs and expenses
- The
applicant also claimed GBP 2,000 in respect of costs and expenses,
plus value-added tax (“VAT”).
- The
Government did not submit any comments.
- 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 the Court awards the applicant EUR 2,400 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 declare admissible the application;
- 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 Widow's Payment
and Widowed Mother's Allowance;
- Holds that it is not necessary to examine
separately the complaints under Article 14 taken in conjunction with
Article 8 of the Convention as concerns the applicant's
non-entitlement to a Widow's Payment and 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
3,000 (three thousand euros) in respect of pecuniary damage plus any
tax that may be chargeable;
(ii) EUR
2,400 (two thousand and four hundred euros) in respect of costs and
expenses plus any tax that may be chargeable to the applicant;
(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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
