CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 27537/95                       by George CARLIN                       against the United Kingdom          The European Commission of Human Rights (Second Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 19 August 1994 by George CARLIN against the United Kingdom and registered on 7 June 1995 under file No. 27537/95;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in 1958. He is currently imprisoned in HM Prison Glenochil in Scotland. He is represented by Levy and McRae, Solicitors practising in Glasgow.   A.    The particular facts of the case        On 19 June 1978 the applicant injured his right hand while working for the Clyde Binding Company. His right hand was crushed and tendons damaged, requiring two operations. The applicant's injury was assessed as 20% for life and he was awarded Industrial Injuries Invalidity benefit (IIDB), an index-linked benefit set by law, by the Department of Social Security ("DSS"). In February 1993 the applicant was receiving £18.73 per week in Industrial Injuries Disablement benefit.        On 19 February 1993 the applicant was arrested. On 16 June 1993 he was informed that his disablement pension had been suspended and that the suspension was to take effect from 23 February 1993, the day following his remand in custody. On 3 September 1993 the applicant was sentenced to life imprisonment.        On 19 June 1994 the applicant wrote to the DSS contesting the suspension of his Industrial Injuries Disablement benefit. His complaints were referred to the Policy Branch in London and in turn to the General Adjudication Service in Leeds. By letter dated 16 August 1994 the DSS, referring to the ruling of the Adjudication Officer, confirmed that the suspension of payment of Industrial Injuries Disablement benefit to the applicant was correct and that there could be no exception to that suspension. Further, the letter stated that on the applicant's release the adjudication officer would decide the amount due to the applicant, based on the most favourable year of his imprisonment. On 12 December 1994 the applicant completed a Scottish Prison Service Form (No. 258), requesting an appeal from the decision of the Adjudication Officer referred to above. By letter dated 16 January 1995 the applicant was informed by the DSS that no right of appeal existed from the suspension of the benefit since it was imposed by the Secretary of State.   B.    Relevant domestic law and practice        The Industrial Injuries Scheme provides benefits for disablement caused by accidents at work. The Scheme only covers disablement suffered at work at a time when a person is an employed earner as defined for National Insurance purposes. The armed forces and the self- employed are excluded from the Scheme. No conditions as to payment of National Insurance or other contributions are placed upon eligibility to receive benefits under the Scheme. Industrial injuries benefits are generally payable in addition to incapacity and disability benefits, and are taken into account as income in calculating entitlement to income related benefits. They are tax-free and are paid regardless of whether the recipient is working at the time of payment and regardless of the recipient's earnings, if any.        The main benefit under the Scheme, is Industrial Injuries Disablement Benefit ("IIDB") which is paid weekly after 90 days from the date of the industrial accident. The rate depends upon the degree of disablement, which is defined in terms of the loss of function arising from the injury rather than the nature of the injury sustained. The same level of IIDB is awarded to all individuals with the same level of injury and thus bears no relation to income or contributions to the social insurance system.        Between 1946 and 1975 benefits under the Scheme were paid from a self-standing Industrial Injuries Fund, itself funded (as to five sixths) by flat-rate contributions from employers and employees and (as to one sixth) by contributions from general taxation. In 1975 the Industrial Injuries Fund was abolished, and between 1975 and 1990, benefits under the Scheme were paid out of the National Insurance Fund, which is controlled and managed by the Secretary of State for Social Security. Since 1990, they have been paid from the Consolidated Fund, entirely out of general taxation.        Section 113(1)(b) (formerly section 82(5)(b) of the Social Security Act 1975) of the Social Security Contributions and Benefits Act 1992 provides (subject to exceptions provided for in regulations) that persons should be disqualified from receiving most contributory and non-contributory social security benefits, including industrial injuries benefits for the period during which that person is undergoing imprisonment.        IIDB is excluded from the operation of that provision by virtue of regulation 2(6) of the Social Security (General Benefit) Regulations SI 1982/1408 ("the Regulations") which provides that section 113(1)(b) shall not operate to disqualify a person from receiving IIDB, for any period during which he is undergoing imprisonment.        However, under regulation 3(1) of the Regulations, payment of IIDB to a person undergoing imprisonment or detention in legal custody shall be suspended while that person is in detention. Regulation 2(7) to which Regulation 2(6) is subject, provides that on release, a maximum of one year's retrospective disablement pension can be claimed.   COMPLAINTS        The applicant complains that his right to IIDB has been suspended whilst in prison. He claims that IIDB amounts to a contributory benefit for which his employer paid national insurance contributions and in which he has a patrimonial interest. He complains that this is imposed on prisoners who are disabled in a discriminatory manner. The applicant has not invoked any specific Article of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 19 August 1994 and registered on 7 June 1995.        On 15 January 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 30 April 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 30 June 1997.        On 28 May 1997 the Commission granted the applicant legal aid.   THE LAW   1.    The applicant complains about the suspension of payment of Industrial Injuries Disablement Benefit (IIDB) during his imprisonment. The Commission has examined this complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention which provides:        "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.        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".        The Government submit that entitlement to a state benefit such as IIDB does not constitute a "possession" for the purposes of Article 1 of Protocol No. 1 (P1-1) of the Convention. The Government rely on a number of factors, in particular the non-contributory nature of the scheme, namely, that payment of contributions to the National Insurance Fund is not a precondition for the payment of the IIDB and therefore entitlement to this social benefit is not linked to any such payment. They further submit that since 1990 the IIDB has been financed from general tax revenues received in the year in which payments are made and not from a fund in which identifiable and claimable interests can be found. Even prior to 1990, the benefit was paid out of the National Insurance Fund, the income of which was received, in a very significant part, from contributions made by employers rather than contributions made by the employees.   The Government also state that the entitlement to IIDB forms part of a general insurance scheme based on the principle of social solidarity. Under domestic law the IIDB does not constitute a possession and cannot, for example, be the subject of a charge or be assigned.        Finally the Government submit that even assuming the entitlement to the IIDB constitutes a "possession" under Article 1 of Protocol No. 1 (P1-1), the suspension of payment amounts to a control of property that strikes a fair balance between the general interest of the community and the requirements of the protection of the individual's fundamental rights. The Government argue that as long as the prisoner is maintained at public expense there is no need for him to receive the benefit in question.        The applicant argues that the intention of the Scheme was to create a "possession" as defined in Article 1 of Protocol No. 1 (P1-1) albeit a potential "possession" which would become actual in the event of an accident being suffered by one of the contributors, such as the applicant. He submits that the word "entitlement" referred to in the Social Security Contributions and Benefits Act 1992, carries with it the inference of "possession" in terms of Article 1 (Art. 1).        The applicant further disputes the relevance of the Government's referring to social solidarity. He submits that contribution to any insurance scheme normally conveys a patrimonial interest or "possession" and that he had made contributions by way of National Insurance contributions deducted from his salary.        Finally, the applicant disputes that any legitimate aim is served by suspending payments of disablement benefits to persons in prison, pointing out that the entitlement accrues in respect of an injury which he continues to suffer. He argues that there is, and can be, no requirement that the benefit is used for support and the fact that he is living in prison is not a justification for not paying it. Accruing payments over the period of detention would in addition serve the beneficial purpose of aiding a successful rehabilitation in the community on his release.        The Commission recalls that it has considered the status of disability benefits in relation to Article 1 of Protocol No. 1 (P1-1) in a number of previous cases. In De Kleine Staarman v. the Netherlands (No. 10503/83 Dec. 16.5.85, D.R. 42, p. 166) which concerned the withdrawal of disability benefit from a woman upon marriage, it held that the right to disability benefit did not constitute a property right which could be described as "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1) because the relevant social security legislation, ie. General Labour Disability Act, was set up as a general insurance based on the principle of social solidarity and as there was no direct link between the level of contributions and the benefits awarded, a person did not have, at any given moment, an identifiable and claimable share in the fund. However, where the body responsible for paying unemployment benefit was partly financed by the National Social Security Office to which an applicant paid contributions as a worker, the question as to whether the unemployment benefit could be considered "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1) was left open (Claes v. Belgium, No. 11285/84 Dec. 7.12.87, D.R. 54, p. 94).        More recently, the Commission observes that in the case of Gaygusuz v. Austria (Eur. Court HR, judgment of 16 September 1996, Reports 1996-IV, No. 14, paras. 39-41), which concerned the right to emergency assistance for an unemployed person, the Court noted that emergency assistance was linked to and dependent upon a payment of contributions and held that in these circumstances the right to emergency assistance was a pecuniary right for the purposes of Article 1 of Protocol No. 1 (P1-1).        The Commission notes that while the disablement benefit awarded to the applicant in this case is not a benefit for which the applicant made direct contributions, IIDB is in fact payable only to qualifying workers who are subject to the national insurance regime. There is therefore a link between entitlement to the benefit and the applicant's status as an employee paying into the national insurance system. However, the Commission finds it unnecessary to decide whether this indirect connection between contributions and benefit is sufficient to give an entitlement to IIDB the character of   "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1). Even assuming that it did,   it is still necessary, in order for such a right to be established, that the person concerned should have satisfied domestic legal requirements governing the right to IIDB (No. 11285/84 op. cit.).          The Commission recalls that pursuant to Regulation 3(1) of the Social Security (General Benefit) Regulations SI 1982/1408 the entitlement to IIDB is subject to suspension of payment when the recipient is in prison. This condition was in force when the applicant was taken into custody.        The Commission therefore finds that the suspension of the applicant's entitlement in conformity with applicable regulations does not constitute an interference with possessions   within the meaning of Article 1 of Protocol No. 1 (P1-1) of the Convention.        It follows that this aspect of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The Commission has also examined the applicant's complaints under Article 14 (Art. 14) of the Convention, which 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."        The case-law of the Convention organs establishes that it is not every difference in treatment which constitutes discrimination within the meaning of Article 14 (Art. 14) of the Convention. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment (see eg. Eur. Court HR Van der Mussele judgment of 21 November 1982, Series A no. 70, Fredin v. Sweden (No. 1) judgment of 18 February 1991 Series A no. 192, p. 19 para. 60).        The Commission recalls that the applicant complains of discrimination as a prisoner. However, it finds that the comparison of prisoners with non-prisoners as regards conditions applicable to receipt of State welfare benefits is a comparison of two different factual situations and as such discloses no discrimination under Article 14 (Art. 14) (see mutatis mutandis Nos. 27004/95 and 27011/95 Szrajber and Clarke v. UK decs. 23.10.97 unpublished, concerning entitlements to contributory state-run pension schemes which are suspended during prison sentences).        It follows that this aspect of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.          M.-T. SCHOEPFER                               G.H. THUNE        Secretary                                   President   to the Second Chamber                      of the Second Chamber