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FOURTH
SECTION
CASE OF THOMAS v. THE UNITED KINGDOM
(Application
no. 63701/00)
JUDGMENT
STRASBOURG
17 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 Thomas 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 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 63701/00) 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 Ian Francis Thomas (“the applicant”), on 29
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 4 December 2001 the Court decided to adjourn
the applicant’s complaint in relation to his claims for Widow’s
Benefits and Widows’ Bereavement Tax 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 1949 and lives in Bournemouth.
-
His wife died on 2 November 1999. They had no children.
- On
29 November 1999 and again on 17 August 2000 the applicant applied
for the payment of social security survivors’ benefits, namely
Widow’s Payment and Pension, with the Benefits Agency. On 3
December 1999 he was informed that he was not entitled to any benefit
because he was not a woman and that he had no right of appeal since
his claim had not been considered by a decision maker.
- On
21 July 2000 the applicant wrote to the Benefits Agency asking for a
reconsideration of his claim. On 26 July 2000 the Benefits Agency
again refused his claim. The content of the letter of 3 December 1999
was reaffirmed in a letter dated 25 August 2000.
- On
29 June 2001 the Benefits Agency wrote to the applicant stating that
they had reconsidered the circumstances in which a formal decision
should be given carrying a right of appeal and after reviewing their
decision they again rejected the applicant’s claim because he
was not a woman. The applicant did not appeal further as he was
advised that in any case such appeal would be bound to fail.
- On
13 September 2000 the applicant made a claim for Widow’s
Bereavement Tax Allowance to the Inland Revenue. On 19 September 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.
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”), Widowed Mother’s
Allowance (“WMA”), 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
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 (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 Wpt, 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, does not
consider it necessary to examine his complaints in that regard under
Article 14 taken in conjunction with Article 8 (see Willis,
cited above, § 53).
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, Richard, Walsh and
Geen, 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 in respect of WBA. He requested the sum of
GBP 1,999 in respect of Wpt including interest to the date of
the filing of the parties’ submissions.
-
The Government submitted that the calculation of the amount of Wpt
including interest which would have been payable to a woman amounted
to GBP 1,206.15.
- 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).
- In
relation to the claim for Wpt, 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) and therefore the rate proposed
by the Government in the present case is the more realistic.
- The
Court finds no reason to depart from these findings and awards on an
equitable basis, compensation to the applicant of EUR 1,600.
B. Costs and expenses
- The
applicant also claimed GBP 3,104.12 in respect of costs and expenses,
inclusive of value added tax (“VAT”).
- The
Government contested the claim, which they believed was excessive for
a straightforward case. They submitted that the figure of GBP 2,000
inclusive of VAT would suffice.
- 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
Wpt were established in Willis and the issues concerning WBA
were established in Hobbs (cited above), the Court awards the
applicant EUR 3,000 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
- Declares admissible the applicant’s claim
to a Widow’s Payment and 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 concerning the applicant’s non-entitlement to a Widow’s
Payment;
- Holds that it is not necessary to examine
separately the complaint under Article 14 taken in conjunction with
Article 8 of the Convention as concerns the applicant’s
non-entitlement to a Widow’s Payment;
- 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
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
amounts to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 1,600 (one thousand six hundred euros) in respect
of pecuniary damage;
(ii)
EUR 3,000 (three thousand euros) in respect of costs and expenses;
(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 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
