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.Introduction
Under current benefit rules, widowers are not entitled to claim
the equivalent of benefits paid to widows. It is being argued that
this discriminates against men and is in breach of the European
Convention on Human Rights.
The current
widows' benefits are due to be replaced by a system of benefits
for both widows and widowers, but these new benefits will not be
introduced until at least April 2001.
It was reported
in the press in April this year that the UK Government had agreed
to make a payment to two widowers, Mr Cornwall and Mr Leary, under
a 'friendly settlement'. The two men were challenging the UK Government
in the European Court of Human Rights (ECHR). (The cases were reported
in the Times (Law Reports) on 10 May 2000).
This briefing
summarises the current position for widowers who are refused benefit
and the steps that they can take.
CPAG is bringing
a case (Willis) before the ECHR, but this case has not been 'settled'
(Mr Willis has not received a payment from the Government).
On the basis
of the claims which have settled, it would seem that the UK Government
is likely to make payments in cases involving claims for the equivalent
of a widow's payment or widowed mother's allowance, as long as the
individual widower has made an application to the ECHR. However,
there is no guarantee of such a settlement, as all the Government
has said is that it will consider each case (where an application
has been made to the ECHR) on its own merits.
It appears that
the Government may not be willing to make a settlement if the claim
is made for widow's pension.
CPAG is not
able to advise members of the public directly and, subject to what
is said about the issue of backdating of claims, is not taking on
any other cases. Members of the public should contact a Citizens
Advice Bureau, benefits adviser or the Campaign for Widowed Fathers'
Benefits for more information.
The
Willis case and claims for widow's pension
The two cases which have 'settled' concern entitlement to an equivalent
of the widow's payment and widowed mother's allowance.
The Willis case
has not been subject to any settlement and is still proceeding.
The rules of the ECHR prevent CPAG from saying why the case has
not settled. However, what we can say is set out below.
Mr Willis is
claiming that he should be entitled to the same widows' benefits
as a woman is if her husband dies. He is therefore seeking payments
equivalent to the widow's payment, widowed mother's allowance and
widow's pension.
All of these
benefits are to be replaced with new 'bereavement benefits', probably
in April 2001. Although these new benefits will be available to
both widows and widowers, the equivalent to what is now the widow's
pension will be far less generous (limited to 52 weeks). However,
under section 36A(1) of the Social Security Contributions and Benefits
Act 1992 (SSCBA), (inserted by section 55 of the Welfare Reform
and Pensions Act 1999), widows who at present have an 'underlying
entitlement' to a widow's pension (eg, because they are presently
in receipt of widowed mother's allowance) will retain that entitlement
after the new 'bereavement benefits' have come into place. This
protection does not, however, extend to widowers in an equivalent
position.
Under the present
rules (if they applied equally to women and men), Mr Willis would
have an underlying entitlement to a widow(er)'s pension, which would
not accrue until sometime well after 2001. It is part of his case
that all of the rules, including the transitional protection rule
contained in s.36A(1) SSCBA, should apply without discriminating
between men and women. Accordingly, he claims that he, too, should
have his underlying entitlement to a widow(er)'s pension protected.
The two cases
which have settled did not, however, involve claims for entitlement
to an equivalent of the widows pension, and were simply concerned
with claims for (an equivalent) of the widow's payment and widowed
mother's allowance.
Can
other widowers receive a payment from the Government?
From the stance adopted by the Government, it would seem that it
will only make payments to individual widowers who have made claims
to the ECHR. Accordingly, any man who considers that, but for his
sex, he would have an entitlement to widows' benefits, should be
advised to take the following steps:
- Make a claim
for the widow(er)s' benefits to the DSS.
When that claim is refused, seek to appeal the decision to an
appeal tribunal (this is a necessary step as the rules of the
ECHR require that all 'domestic remedies' be exhausted before
a claim can be made to it). It is likely that the tribunal will
decline to hear the appeals, as there are no such benefits available
to men.
When the appeal has been declined, make an application to the
ECHR.
- Making an
application to the ECHR
The appeal to the ECHR must be done within six months of the (last)
decision complained of (eg, in this case, the appeal tribunal
decision). The application can be made initially by letter (if
up against the six-month time limit) though the letter must contain
enough information to make clear what the substance of the 'complaint'
is. In any event, a full application will need to be made in each
case – the application will need to be made on an ECHR application
form.
- No court
fees need to be paid to lodge the application (or for any other
aspect of the case before the ECHR).
- The application
(or any letter) should be sent to: Secretary of the Court of Human
Rights, Council of Europe, F-67075 Strasbourg Cedex, France -
Tel: 00 33 88 41 2000.
Other
issues
Two other issues may arise:
a)What if
the claimant has not exhausted all 'domestic remedies' before
applying to the ECHR? and
b) Backdating of claims.
a)
Failure to exhaust domestic remedies
This may not be a major problem for the future, as CPAG understands
that (some) 'decisions' are now being issued by the DSS saying that
as no such benefits exist for widowers the decision maker has no
jurisdiction to make a decision, and therefore there is no right
of appeal. In such a situation, the non-decision of the DSS would
be the final domestic step that could be taken, and therefore the
application could be made to the ECHR within six months of the date
of the DSS letter.
However, past
practice has been (and may continue to be with some decision makers)
to issue a decision saying that the widower is not entitled, and
giving the widower a right of appeal against that decision. In this
situation the best advice is for the widower to exercise the right
of appeal given to him (notwithstanding that it is a pointless exercise
as there is not entitlement under current benefit rules!), to avoid
any arguments before the ECHR about whether he exhausted his domestic
remedies. Where such appeals are being brought, it is the practice
of appeal tribunals to dismiss the appeal for want of jurisdiction.
This then acts as the final domestic remedy, and so any complaint
can be made to the ECHR within six months of the date of the appeal
tribunal decision.
If someone was
given a right of appeal but did not exercise it (and is now outside
any appeal time limit), this is not a knock out point against him.
So he should still be advised to make an application to the ECHR.
There is a widower's case before the ECHR where this point arises
and the Government has taken the point against the widower. However,
it is uncertain whether the Government will be successful on this
point. This is because the case law of the ECHR makes it clear that
the domestic remedy in question must be 'likely to be effective
and adequate', and that there is no requirement to pursue a remedy
that provides no prospect of success. If this is right, it is difficult
to see how, in these case where there are no widowers' benefits
presently on the domestic statue, an appeal tribunal can be said
to offer an effective remedy to a widower. All the tribunal can
do is apply the domestic law as it stands. This will not change
once the Human Rights Act comes into effect on 2 October 2000. Accordingly,
arguably the only remedy that a widower has is to apply to the ECHR
direct.
b)
Backdating of claims
The arguments here are more difficult. The point here is that a
lot of widowers never claimed widowers' benefits in time because
they either thought that no such benefits existed and so it was
not worthwhile claiming them, or they were positively advised by
the DSS to the same effect. What then happens is that some years
later they hear about the Willis case and then make a claim. However,
assuming that such a claim will succeed on an application to the
ECHR, benefit is only likely to be awarded from the date of the
claim.
What then of
the argument that the man would have claimed earlier had he known
such an argument would be successful and despite the (correct) domestic
advice he was given at the time that there were no such benefits
for men?
On the one hand,
it may be said that if a woman did not claim in time then she would
be treated in the exact same way as a man (ie, she would not be
entitled to any backdating). On the other hand, it may be argued
that the man's case is different as his failure to claim was caused
by the unlawful and discriminatory nature of the scheme itself,
and this should not be used against him to prevent backdating as
to do so would simply be perpetuating the discrimination in a different
way.
This point did
not arise in the Willis case and CPAG has therefore never had to
address it. It may, however, arise in another case, which may be
being referred to CPAG.
Until this issue
has been fully explored, however, if people want to raise the backdating
issue in their application to the ECHR they should be advised that
there is no compelling reason at the moment why they should not.
More
information
A very useful organisation that can advise on making applications
is the Campaign for Widowed Father's Benefits at 15 Whiteway Close,
St. George, Bristol, BS5 7QZ. Tel/Fax: 0117 9555886.
For information about widows' benefits and other social security
benefits, claim procedures and appeals see CPAG's Welfare
Benefits Handbook (2000/01 edition).
The information in this factsheet is for guidance only and should
not be treated as a definitive statement of the relevant law and
procedure.
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