CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 mai 2006

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mr   M. Pellonpää ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above applications lodged on the dates set out below, Having regard to - the partial decisions of 10 September 2002 (application no. 75995/01), of 12 November 2002 (applications nos. 25850/02, 27952/02, 27976/02, 27988/02, 28005/02, 28031/02, 28066/02 and 28076/02), of 8 April 2003 (applications nos. 28000/02 and 42702/02) and of 4 November 2003 (application no. 28096/02), - the decisions to join the following applications to other applications taken on 10   September 2002 (application no. 75995/01) and 17   November 2005 (applications nos. 75995/01, 27963/02, 28016/02 and 28035/02),   - the decision of 17 November 2005 to examine the admissibility and merits together in applications nos. 27963/02, 28016/02 and 28035/02, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS A.   The circumstances of the cases In all the following cases, the Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office. 1.   Idris Prosser, no. 75995/01, lodged on 20 August 2001 The applicant is a British national who was born on 10 September 1932 and who lives in Newport, Gwent. He is not represented before the Court. The applicant was widowed on 17 July 1993. On 28 January 2001, aged 68, he made an application for survivors’ benefits, which was finally refused on 19   February 2001. 2.   Tom Jones, no. 25850/02, lodged on 28 June 2001 The applicant is a British national who was born on 8 May 1922 and lives in Swansea. He is not represented before the Court. The applicant was widowed on 3 March 2001, when he was 78 years old. He subsequently claimed survivors’ benefits and was refused. 3.   Alan Beatty, no. 27952/02, lodged on 13 September 2001 The applicant is a British national who was born on 19 November 1933 and who lives in Ormskirk. He is represented before the Court by Royds RDW, solicitors practising in London. The applicant was widowed on 20 September 1992. There was one child of the marriage, born on 19 November 1977. The applicant made an enquiry about survivors’ benefits to the Benefits Agency in August 1997, and was informed by a letter dated 15 September 1997 that men were not eligible for such benefits. He wrote to the Benefits Agency again in November 2000, asking for his claim to be reconsidered, and was informed again, on 30   November 2000, that he was not entitled. The applicant made a formal application for bereavement benefits on 27   May 2001, aged 67, and was refused on 31 May 2001. He appealed, and his appeal was finally rejected by the Appeals Tribunal on 3 August 2001. 4.   Ralph Bretherton, no. 27963/02, lodged on 1 March 2001 The applicant is a British national who was born on 11 September 1934 and who lives in Tipton. He is also represented before the Court by Royds RDW. The applicant was widowed on 16 September 1989. On 11 May 2000, aged 65, he applied for survivors’ benefits, and was finally refused on 9   November 2000. 5.   Raymond Clements, no. 27976/02, lodged on 24 October 2001 The applicant is a British national who was born on 17 October 1931 and who lives in Birmingham. He is also represented before the Court by Royds RDW. The applicant was widowed on 31 October 2000, when he was 69. He claimed survivors’ benefits on 17 April 2001 and was finally refused at some point after July 2001. 6.   Malcolm Driver, no. 27988/02, lodged on 29 May 2001 The applicant is a British national who was born on 12 August 1934 and who lives in Barnoldswick. He is also represented before the Court by Royds RDW. The applicant was widowed on 22 October 1984. In December 2000, aged 66, he claimed survivors’ benefits, and was finally refused on 9   January 2001. 7.   Bob Green, no. 28000/02, lodged on 18 May 2001 The applicant is a British national who was born on 21 December 1929 and who lives in Nelson. He is also represented before the Court by Royds RDW. The applicant was widowed on 2 September 1989. On 12 December 2000, aged 70, he claimed survivors’ benefits, and was refused the following day. 8.   Leonard Hemming, no. 28005/02, lodged on 13 September 2001 The applicant is a British national who was born on 19 November 1923 and who lives in Brackley. He is also represented before the Court by Royds RDW. The applicant was widowed on 9 July 1970. On 28 March 2001, aged 77, he claimed survivors’ benefits, and was finally refused on 6 June 2001. 9.   Robin Jenkinson, no. 28016/02, lodged on 1 March 2001 The applicant is a British national who was born on 23 December 1933 and who lives in Skemersdale. He is also represented before the Court by Royds RDW. The applicant was widowed on 30 January 1996. Shortly after his wife’s death he made enquiries about survivors’ benefits but was told these were not available for men. On 2 October 2000, aged 66, he claimed survivors’ benefits, and was refused the following day. 10.   Martin Marshall, no. 28031/02, lodged on 24 October 2001 The applicant is a British national who was born on 22 October 1934 and who lives in Gosport. He is also represented before the Court by Royds RDW. The applicant was widowed on 8 November 1993. In February 2001, aged 66, he enquired about survivors’ benefits and was informed on 2 April 2001 that such benefits were not available to men. He subsequently made a formal application, which was refused on 8 May 2001. 11.   Joseph McDonnell, no. 28035/02, lodged on 1 March 2001 The applicant is a British national who was born on 19 August 1935 and who lives in Skemersdale. He is also represented before the Court by Royds RDW. The applicant was widowed on 30 June 2000. In October 2000, aged 65, he applied for survivors’ benefits, and was refused on 13 October 2000. 12.   Victor Russell, no. 28066/02, lodged on 18 May 2001 The applicant is a British national who was born on 20 April 1922 and who lives in Prestwood. He is also represented before the Court by Royds RDW. The applicant was widowed on 7 October 1989. Following his wife’s death the applicant enquired about survivors’ benefits but was informed by the Benefits’ Agency that men were not eligible. He made a formal application in November or December 2000, aged 78, to which he never received a response. 13. John Smith, no. 28076/02, lodged on 13 September 2001 The applicant is a British national who was born on 5 July 1934 and who lives in Burnley. He is also represented before the Court by Royds RDW. The applicant was widowed on 26 March 1996. He made a formal application for survivors’ benefits in February 2001, aged 66, which was finally refused on 12 April 2001. 14.   William Tyman, no. 28096/02, lodged on 29 May 2001 The applicant is a British national who was born on 13 June 1935 and who lives in Skelmerdale. He is also represented before the Court by Royds RDW. The applicant was widowed on 25 December 1989. On 13 September 2000, aged 65, he applied for survivors’ benefits, and was finally refused on 2 November 2000. 15. John Rickards, no. 42702/02, lodged on 18 March 2002 The applicant is a British national who was born on 24 September 1936 and who lives in Rossendale. He is also represented before the Court by Royds RDW. The applicant was widowed on 25 April 1989. Following his wife’s death, he enquired about survivors’ benefits and was informed that they were not available for men. On 5 December 2001, aged 65, he applied for survivors’ benefits, and was finally refused on 10 December 2001. B.     Relevant domestic law The domestic law relevant to these applications is set out in Willis v. the United Kingdom , no. 36042/97, §§ 14-26, ECHR 2002-IV. COMPLAINTS The applicants complain under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 that, because they were men, they were not entitled to the equivalent of widow’s benefits. THE LAW A.   The parties’ submissions The Government submit that each applicant was aged 65 or over and had no dependent children at the time of his claim to the Benefits Agency, and applied outside the three-month domestic time-limit for a Widow’s Payment. Women in their position would not be eligible for the benefits and the applicants could not claim to be victims of discrimination. The Government further submit, in respect of Mr Prosser, that his late wife had in any event made insufficient national insurance contributions to give rise to any entitlement to widow’s benefits. The applicants respond, in essence, either that they did not apply earlier to the Benefits Agency because they did not think they would be entitled to widow’s benefits or that they did apply closer to the date of their wives’ deaths and were refused. Royds RDW submit on behalf of the applicants they represent that the discrimination in issue, arising out of legislation which continuously affected the exercise of a guaranteed right, amounted to a continuing violation and that the six months time-limit under Article 35 of the Convention should not, therefore, apply. B.   The Court’s assessment The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Cornwell v. the United Kingdom , no. 36578/97, decision of 11   May 1999). Under the legislation providing for widow’s benefits at the relevant time (see Willis ), a widow was not automatically entitled to survivors’ benefits, but had to claim them from the relevant authority. Various time-limits applied: a widow had to make a claim for Widow’s Payment within three months of her husband’s death and a claim for Widowed Mother’s Allowance or Widow’s Pension could be made outside that time-limit, but would be back-dated only three months. To be eligible for Widowed Mother’s Allowance, a woman had to be unmarried and either pregnant by her late husband or entitled to child benefit in respect of a child of the marriage. To be eligible for a Widow’s Pension, a woman had to be aged between 45 and 65 at the date of her husband’s death and to have ceased to be eligible for a Widowed Mother’s Allowance. The widow was not entitled to the pension for any period after she remarried, but, subject to that, continued to be entitled until she attained the age of 65. In order for any entitlement to arise, the widow’s deceased husband had to have made sufficient national insurance contributions. The Court considers, as it held in Cornwell , that unless or until a man has made a claim to the domestic authorities for bereavement benefits, he cannot be regarded as a “victim” of the alleged discrimination involved in the refusal to pay such benefits, because a woman in the same position would not automatically be entitled to widow’s benefits until having made a claim (but see also White v. the United Kingdom , no. 53134/99, decision of 7 June 2001, where the Court clarified that, as long as an applicant had made clear to the authorities his intention to claim benefits, the precise form in which he did so was not important). Similarly, a man who failed to apply within the time-limits as they applied to women could not, in most cases, claim to be a victim of discrimination, since a woman in the same position would not have been entitled to the benefit in question (see Rogan v. the United Kingdom , no. 57946/00, decision of 8 September 2001). Insofar as the applicants complain that they are victims of a continuing violation to which the six months rule is inapplicable, the Court recalls that the concept of a “continuing situation” refers to a state of affairs which involves continuous activities by or on the part of the State to render the applicants victims (see, for example, Skowronski v. Poland, no. 37609/97, decision of 19 March 2002). There is no such “continuing situation” here, since a widower cannot claim to be a victim of discrimination until he has applied for benefits and been refused. It has, therefore, been the Court’s consistent practice in such cases to hold that the six months time-limit in Article 35 §   1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits (see, for example, Barrow and Others v. the United Kingdom, nos. 68175/01, 68928/01, 69327/01, 13944/02, decision of 13 December 2005). The complaints of Mr Beatty, Mr Jenkinson, Mr Russell and Mr Rickards about the rejection by the Benefits Agency of their claims for widow’s benefits at various times between 1989 and 2000 are, therefore, inadmissible under the six months rule. Further, since each applicant was aged 65 or over by the time of his most recent claim for Widow’s Pension, was no longer in receipt of child benefit, and had missed the time-limit for a Widow’s payment, women in their position would not have been entitled to widow’s benefits. The applicants cannot, therefore, claim to be victims of discrimination contrary to the Convention, and these applications are inadmissible under Article 34 of the Convention. For these reasons, the Court unanimously Decides to disjoin applications 75995/01, 27963/02, 28016/02 and 28035/02 from the applications to which they were joined and to discontinue the application of Article 29 § 3 in applications 27963/02, 28016/02 and 28035/02, and Declares the applications inadmissible.   Michael O’Boyle   Josep Casadevall Registrar President