Willis v. UK

Kevin Willis was left with the upbringing of his children after his wife died of cancer at the age of only 39. Kevin claimed widower's benefits equivalent to widow's benefits, and was denied them, a blatant discrimination of course.

His subsequent application to ECHR was declared admissable, and the UK government decided not to contest the case, and promised changes to the law to give men equality. But no date has been set as far as we are aware.

Here is the Court's admissibility decision.

THIRD SECTION

AS TO THE ADMISSIBILITY OF

Application no. 36042/97

by Kevin David WILLIS

against the United Kingdom

The European Court of Human Rights (Third Section) sitting on 11 May 1999 as a Chamber composed of

Mr J-P. Costa, President,

Sir Nicolas Bratza

Mr L. Loucaides,

Mr P. Kuris,

Mr K. Traja, Judges,

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 April 1997 by Kevin David WILLIS against the United Kingdom and registered on 13 May 1997 under file no. 36042/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the respondent Government’s letter of 29 May 1998 waiving the admissibility of the application;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1956 and resident in Bristol. He is represented before the Court by Mr. D. Thomas, a solicitor working for the Child Poverty Action Group in London. The facts of the application, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant was married in December 1984 to Marlene Willis. There are two children of the marriage, Natasha Uma, born 24 March 1989, and Ross Amal, born 2 August 1990. Mrs Willis died of cancer on 7 June 1996, aged 39 years. The applicant is the administrator of his late wife’s estate.

Mrs Willis was employed as a Local Authority Housing Officer. For the greater part of their married life, Mrs Willis was the primary breadwinner. She paid full social security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person incapable of work. The applicant gave up work to nurse his wife and care for their children on 3 November 1995. Following his wife’s death he worked part-time between 2 September 1996 and 6 November 1996, at an annual salary of GBP 4,393, but since this proved uneconomic the applicant ceased his employment to care full-time for the children.

On 4 November 1996 the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those which a widow, whose husband had died in similar circumstances to those of Mrs Willis, would have been entitled, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992 ("the 1992 Act").

By a letter dated 18 November 1996, the Benefits Agency informed the applicant that the benefits he had claimed did not exist for widowers, and that his claim accordingly could not be accepted as valid. The letter continued:

"I am afraid I can only explain that the Government says that it has no plans to introduce a widowers’ pension on the same line as the existing Widows’ Benefits.

It may help if I explain the current policy underlying widows’ benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse’s earnings and therefore more likely on widowhood to face greater financial hardship. The benefits themselves are concentrated on those widows who are perceived to have the greatest problems, those with children and older women who may been out of the labour market for many years.

It is accepted that social patterns have changed considerably since the provisions were first introduced. However, it is still broadly the case that on bereavement, women are more likely than men to be in financial need. For instance, most widowers of working age will have been in employment before the death of their wives. They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work. Women on average earn less than men. So even for women who have been working, the financial loss on widowhood is likely to be significantly more than for men.

Widows’ benefits are not means tested and are paid regardless of the level of the widows’ earnings. The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings, and in some cases, very high earnings indeed. To make existing widows’ benefits provisions available to widowers would add an estimated GBP 490 million to the annual Social Security budget. The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered, this is simply not a best use of scarce resources.

In making these points, the Government says that it is in no way minimising the sad problems faced by widowers, in particular those left with small children to care for. For them there are already available benefits such as Child Benefit and One Parent Benefit, together with the range of income-related benefits, for example, Income Support for those not in full time work and Family Credit for low paid workers. In the Government’s view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows’ benefits along the lines suggested. ..."

The applicant lodged a statutory appeal against this decision on 17 February 1997. The Social Security Appeal Tribunal declined jurisdiction on the basis that no appealable decision had been made.

The applicant currently receives Child Benefit amounting to GBP 20.05 per week and, in respect of his son Ross, Disability Living Allowance of GBP 46.25 per week and Invalid Care Allowance of GBP 58.45 per week. He is also in receipt of a widower’s pension of GBP 101.28 per month, under Mrs Willis’s occupational pension scheme. The applicant has capital, much of which is derived from a joint endowment policy (for which he and Mrs Willis had paid premiums) which matured on Mrs. Willis’s death, from which he obtains a further income of about GBP 150 per month. Because of his savings, the applicant does not qualify for means-tested benefits such as Income Support or Family Credit. All the social security benefits he receives would also be received by a widow who would in addition be paid Widow’s Payment and Widowed Mother’s Allowance. If the applicant were entitled to receive social security benefits equivalent to those to which a woman in similar circumstances to himself would be entitled, he would be GBP 83.55 per week better off. He would also have received a one-off Widow’s Payment of GBP 1,000.

B. Relevant domestic law and practice

Under United Kingdom law, certain social security benefits, including Widow’s Payment, Widowed Mother’s Allowance, and Widow’s Pension, are paid for out of the National Insurance Fund. By Section 1 of the 1992 Act, the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament.

Male and female earners are obliged to pay the same social security contributions in accordance with their status as employed earners or self-employed earners.

1. Widow’s Payment

Under Section 36 of the 1992 Act, a woman who has been widowed is entitled to a widow’s payment (currently a lump sum payment of GBP 1,000) if:

(i) she is under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension;

(ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act.

2. Widowed Mother’s Allowance

Under Section 37 of the 1992 Act, in so far as relevant, a woman who has been widowed (and who has not remarried) is entitled to a mother’s allowance on certain conditions, the following being the relevant conditions to the circumstance of the present case:

(i) her husband satisfied the contribution conditions set out in a Schedule to the Act; and

(ii) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband.

The Widowed Mother’s Allowance currently amounts to GBP 62.45 per week, with an extra GBP 9.90 per week in respect of the eldest eligible child, and a further GBP 11.20 per week in respect of other children.

3. Widow’s Pension

Under Section 38 of the 1992 Act, a woman who has been widowed (and who is not remarried) is entitled to a widow’s pension if:

(i) her husband satisfied the contribution conditions set out in a Schedule to the Act; and

(ii) at the date of her husband’s death she was over the age of 45 but under the age of 65; or

(iii) she ceased to be entitled to a widowed mother’s allowance at the time when she was over the age of 45 but under the age of 65.

If the applicant were a woman, he could look forward to entitlement to a Widow’s Pension in the future, when he would no longer be entitled to the Widowed Mother’s Allowance.

COMPLAINTS

The applicant complains that British social security legislation discriminates against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

PROCEDURE

The application was introduced on 24 April 1997 and registered on 13 May 1997.

On 15 January 1998, the Commission decided to communicate the application to the respondent Government.

By a letter dated 29 May 1998 the Government indicated that they did not intend to contest the admissibility of the application and accordingly would not submit any observations on admissibility. They did, however, reserve the right to submit observations before the merits were examined.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that the lack of provision for widowers’ benefits under British social security legislation discriminates against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1.

Article 14 states:

"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 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 ... ."

Article 1 of Protocol No. 1 states:

"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."

The Court observes that the Government do not contest the admissibility of the application and have submitted no observations in this connection.

The Court considers that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. Dollé J-P. Costa

Registrar President