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FOURTH
SECTION
CASE OF FALLON v. THE UNITED KINGDOM
(Application
no. 61392/00)
JUDGMENT
STRASBOURG
20
November 2007
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 Fallon v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61392/00) 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 Mr Joseph
Fallon (“the applicant”) on 5 September 2000.
- The applicant was represented before the Court by
Pierce Glynn Solicitors, 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 10 October 2001 the Court decided to
communicate the complaints concerning widows' benefits and declared
the remainder of the application inadmissible. By a decision of 8
April 2003 the Court declared the complaint regarding Widowed
Mother's Allowance admissible and the remainder of the application
inadmissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Dorset.
- His
wife died on 13 July 1999, leaving four children born in 1981, 1983,
1991 and 1999. His claim for widows' benefits was made in May 2000
and was rejected on 16 May 2000 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice is 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 Widowed
Mother's Allowance (“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...”
- 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 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 WMA, does not
consider it necessary to examine his complaints in that regard under
Article 14 taken in conjunction with Article 8.
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. Pecuniary damage
- In
respect of pecuniary damage the applicant claimed a total of 8,356.98
British pounds sterling (GBP):
(i) GBP 5,301.64 for WMA payments from 22 February 2000 to
11 April 2000;
(ii) Interest
at rate of 8% on the above amounts, namely, GBP 3,045.34;
(iii) Christmas
bonus, GBP 10.
-
The Government submitted that GBP 6,280.62 covering the amount of WMA
due and interest on such sums would be adequate compensation. The
Government submitted that the Court should apply the same interest
rates as applied by the Department of Work and Pensions when,
exceptionally, a welfare claimant had lost the use of a sum of money
as a result of a departmental error. These rates, based on the yearly
Average Retail Shares and Deposits rate supplied by the Building
Societies Commission, varied from 4.881%, being the highest, in
1998–1999 and 2.691%, being the lowest, in 2003-2004. The
Government contested the remaining claims as they were not due to the
applicant's failure to receive social security benefits.
- 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 and it considers that the rate proposed by the Government is
the more realistic (see Runkee and White v. the United Kingdom,
nos. 42949/98 and 53134/99, judgment of 10 May 2007, § 52).
-
In these circumstances, and making an award on an equitable basis,
the Court awards compensation to the applicant of GBP 6,280.62
(approximately 9,030 euros) which covers both the amount due in WMA
and interest on it.
B. Non-pecuniary damage
- The
applicant claimed GBP 1,000 for the hurt and distress caused by the
alleged violation.
- The
Government contested the claim on the basis of the Court's
jurisprudence.
- The
Court does not accept that he was caused any particular moral
damage as a result of being denied the benefit in question. No
award is accordingly made under this head.
C. Costs and expenses
- The
applicant also claimed GBP 2,367.70 in respect of costs and expenses,
inclusive of value added tax (“VAT”).
- The
Government contested the claim. While a fee rate of GBP 120 had been
submitted in respect of solicitors, no fee rate was quoted in respect
of counsel. Furthermore no details were given as to the number of
hours of work claimed. In the absence of such details, in accordance
with the Court's jurisprudence, this claim should be dismissed.
- 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). However, all claims for just
satisfaction must be particularised and supported by relevant
documentation, failing which the Chamber may reject the claim in
whole or in part. The applicant has not submitted itemised bills of
costs to the Court. Without details of the work done and the hourly
rates charged, it is not possible for the Court to determine whether
the costs were necessarily incurred and reasonable as to quantum. On
the basis of the information in its possession and taking into
account that the issues concerning WMA were established in Willis,
the Court awards the applicant EUR 2,000 for legal costs and
expenses, in addition to any VAT that may be payable.
D. 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
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1 concerning non-entitlement to a Widowed Mother's Allowance;
- Holds that it is not necessary to consider that
complaint under Article 14 of the Convention taken in conjunction
with Article 8;
- 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
9,030 (nine thousand and thirty euros) in respect of pecuniary
damage;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 20 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
