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FOURTH
SECTION
CASE OF TWIZELL v. THE UNITED KINGDOM
(Application
no. 25379/02)
JUDGMENT
STRASBOURG
20 May
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 Twizell 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,
Ján
Šikuta,
Ledi Bianku, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25379/02) 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 Geoffrey Twizell (“the applicant”), on 7
June 2002.
- The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr C. Whomersley of the Foreign and
Commonwealth Office, London.
- By a decision of 12 November 2002 the Court decided to
communicate the application. Subsequently, under the provisions of
Article 29 § 3 of the Convention, the President of 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 1941 and lives in France.
- His
wife died on 26 March 2001. They had no children from the marriage.
His claim for widows' benefits under the new system in place as from
9 April 2001 was made on 4 May 2001 and was rejected on 4 June 2001
on the ground that he was not entitled to widows' benefits.
On 10 July 2001 the applicant appealed. Reconsideration
took place on 23 July 2001 and the decision remained unchanged.
On 15 November 2001 his appeal was heard and dismissed by an Appeal
Tribunal. On 23 November 2001 the applicant applied for
leave to appeal to the Social Security Commissioner. On 20 February
2002 the applicant was informed that his request had been disallowed.
- The
applicant did not appeal further as he considered or was advised that
such a remedy would be bound to fail since no such social security or
tax 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 cases of Willis v. the United Kingdom, no.
36042/97, §§ 14 26, ECHR 2002-IV and Runkee
and White v. the United Kingdom, no. 42949/98, §§
40-41, 25 July 2007.
-
The Welfare Reform and Pensions Act 1999 (“the 1999 Act”)
introduced various new social-security payments, inter alia,
Bereavement Payment and Bereavement Allowance.
-
Bereavement Payment is payable both to men and women in place of
Widow's Payment. The same conditions applied, except that the new
payment was available to both widows and widowers whose spouse died
on or after 9 April 2001. However, the amount is double the sum
offered under the previous scheme. Bereavement Allowance replaced
Widow's Pension. It is an allowance for widows and widowers over the
age of 45 but under pensionable age at the time of the spouse's death
and where there are no dependent children. It is payable for 52 weeks
from the date of bereavement.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 OR ARTICLE 8 OF
THE CONVENTION
- The
applicant complained that the United Kingdom authorities' refusal to
pay him the social security benefits to which he would have been
entitled had he been a woman in a similar position namely Widow's
Payment (“Wpt”) 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 or Article 8 of the Convention.
- He
further complained that the United Kingdom authorities' refusal to
pay him the social security benefits to which he would have been
entitled had his wife died after April 2001, namely Bereavement
Payment (“BP”) and Bereavement Allowance (“BA”)
constituted discrimination against him contrary to Article 14 of the
Convention taken in conjunction with Article 1 of Protocol No. 1 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. 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 Pension
1. Admissibility
- 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 v. the United
Kingdom, cited above, §§ 40-41). The Court,
consequently, considering that it was not necessary to examine the
complaint separately under 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 Widow's Pension or
equivalent (ibid § 42).
- Consequently,
the complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
C. Bereavement Payment and Bereavement Allowance
1. Admissibility
- The
Court considers that the applicant's complaint about the non payment
to him of BP and BA falls within the scope of Article 1 of Protocol
No. 1 (see Stec and Others v. the United Kingdom (dec.)
[GC], nos. 65731/01 and 65900/01, §§ 53 and 54, ECHR
2005- ...). Since Article 14 therefore applies, it is not
necessary to decide whether the complaint also raises an issue under
Article 14 taken in conjunction with Article 8 (see also Willis v.
the United Kingdom, cited above, § 53).
- The
Court recalls that Article 1 of Protocol No. 1 does not include a
right to acquire property. It places no restriction on the
Contracting State's freedom to decide whether or not to have in place
any form of social security scheme, or to choose the type or amount
of benefits to provide under any such scheme. If, however, a State
does decide to create a benefits or pension scheme, it must do so in
a manner which is compatible with Article 14 of the Convention (see
the Stec and Others, cited above, §§ 54 55).
- A
difference of treatment is discriminatory if it has no objective and
reasonable justification; in other words, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised. The Contracting State enjoys a margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment (see the Stec and Others,
[GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-...). The
scope of this margin will vary according to the circumstances, the
subject-matter and the background.
- The
Court notes that unlike most complaints relating to these issues, the
present complaint is not about a difference in treatment based
exclusively on the ground of sex, in which case very weighty reasons
would have to be put forward to find such a difference in treatment
compatible with the Convention. The present complaint is based on the
fact that a difference in treatment resulted from the application of
a cut-off date.
- In
the present case, it must be recalled that the Welfare Reform and
Pensions Act 1999 (“the 1999 Act”) introduced a new
system of benefits, the aim of which was to level out any
discrimination arising from the previous system of benefits applied
in the United Kingdom before April 2001. In particular, the 1999 Act
introduced, among other benefits, BP and BA and came into force on 9
April 2001. It replaced equivalent benefits payable prior to that
date, but to which only widows had been entitled.
- The
Court considers that BP and BA were intended to correct the undesired
discriminatory situation created amongst the widowed part of the
population prior to 2001 and therefore the resultant difference in
treatment caused by the non-retrospective effect of the operative
date – 9 April 2001 – pursued a legitimate aim. In
creating a scheme of benefits it is sometimes necessary to use
cut-off points that apply to large groups of people and which may to
a certain extent appear arbitrary. The applicant's spouse died almost
immediately before the entry into force of the 1999 Act and for that
reason the applicant could not qualify for BP and BA. However, this
is an inevitable consequence of introducing new systems which replace
previous and outdated schemes. The choice of a cut-off date when
transforming social security regimes must be considered as falling
within the wide margin of appreciation afforded to a State when
reforming its social strategy policy and in the instant case the
impugned cut-off date can be deemed reasonably and objectively
justified.
- It
follows that the 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. Pecuniary damage
- In
respect of pecuniary damage the applicant claimed a total of 10,770
British pounds sterling (GBP):
(i) GBP
2,000 for Widow's Payment/Bereavement Payment;
(ii) GBP
3,770 for BA (52 weeks at GBP 72.50 per week).
-
The Government requested the Court to limit any award to the sum of
GBP 1,142.97 representing Wpt and interest as of November 2005.
- The
Court notes that it has only found a violation in respect of Wpt. It
recalls that at the time of the applicant's wife's death, the lump
sum for Wpt was equivalent to GBP 1,000. The interest rate has
already been determined by the Court in the case of Runkee and
White (cited above, § 52). Thus, making an award
on an equitable basis, the Court awards compensation to the applicant
of 1,960 euros (EUR) in respect of the refusal to grant him Wpt
including interest.
B. Non-pecuniary damage
- The
applicant claimed GBP 5,000 for the hurt and distress caused by the
alleged violation.
- The
Government contested the claim.
- The
Court does not find it established that the applicant was caused
real and serious emotional damage as a result of being denied the
benefit in question. No award can accordingly be made under this
head.
C. Costs and expenses
- The
applicant did not submit any claims under this head.
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
- Decides to declare admissible the complaint
relating to the applicant's non-entitlement to a Widow's Payment and
the remainder of the application inadmissible;
2. 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 the
complaints under Article 14 of the Convention in conjunction with
Article 8 of the Convention as concerns the applicant's
non-entitlement to a Widow's Payment;
- 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
1,960 (one thousand nine hundred and sixty euros) in respect of
pecuniary damage;
(ii)
any tax that may be chargeable 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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
