[2007] UKSSCSC CG_2488_2006 (21 May 2007)

CG 2488 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I dismiss the appeal. for the reasons below, the decision of the tribunal is not wrong in law.

2	The claimant and appellant, Mr W, is appealing with permission of a chairman. He is appealing against a decision of the Norwich appeal tribunal on 14 06 2006 under reference U 42 142 2006 00726. The tribunal confirmed the decision of the Secretary of State that Mr W was not entitled to widow’s benefit but gave its own reasons for its decision.

REASONS

The claim for widow’s benefits
3	Mr W’s late wife (the late Mrs W) died on 12 07 2000. On 21 10 2005 he claimed widow’s benefits in respect of her death. Express general provision for entitlement to benefits for widowers only came into effect on 9 04 2001.  Before that date, there was entitlement where the survivor was receiving child benefit at the time of the death. This did not apply to Mr W. When the late Mrs W died Mr W had no direct entitlement under United Kingdom legislation to the benefits he claimed. He sought instead to claim by reference to rights under European law. 

History of the claim
4	The tribunal found that Mr W made enquiries about possible benefits at the time of Mrs W’s death and was told he had no entitlement. He accepted that advice at the time and made no claim. He later found out that others were receiving sums in settlement of claims made by reference to European law. He therefore made a claim some years later. This was refused by the decision maker acting for the Secretary of State on the grounds that Mr W was not a widow. He appealed, referring to advice about both European Union law and the European Convention on Human Rights. 

5	 The tribunal took a different point to that of the decision maker acting for the Secretary of State. Regulation 19(1) of the Social Security (Claims and Payments) Regulations 1987 provides an absolute time limit of three months from the death in which claims may be made for widow’s benefits. The tribunal found that Mr W had not made his claim within the required time limit. It therefore decided that it had “no alternative but to dismiss the appeal on the sole ground that the claim was outside the absolute time limit of 3 months.” 

Grounds of appeal 
6	Mr W appealed. His ground of appeal was that he had attempted to claim within the time limit but that the Department of Social Security had refused to accept his claim. Had he not had his attempt to claim refused at that time he would now have a good claim under European law. Mr W supported his grounds of appeal by reference to a briefing by the Child Poverty Action Group. This raised the issue of the validity of a later claim following an earlier failure to claim in circumstances such as those that Mr W contended to apply in his case. 

7	The later claim made was considered by the decision maker acting for the Secretary of State without express attention being given to the time limit point or to the attempt to make a claim in time. As the tribunal found as fact that Mr W had made enquiries within the relevant time limit, I asked for a full submission from the Secretary of State on time limit issues. In certain cases national time limits are subject to European Union law. I invited a submission on that aspect of Mr W’s appeal. I drew the attention of both parties to the decisions of Commissioners in CG 1895 2001 and CG 3491 2005 and the decision of the Court of Appeal on time limit issues in cases with European law elements in Condé Nast Publications Ltd v Commissioners of Revenue and Customs [2006] EWCA Civ 976. 

8	The secretary of state's representative rightly makes the point that the position in United Kingdom law is put beyond argument by the decisions of the Court of Appeal and House of Lords in R (Hooper and others) v Secretary of State for Work and Pensions [2003] 1 WLR 2632, affirmed at [2005] UKHL 29. Mr W has not sought to contend otherwise – nor could he. It is therefore common ground that Mr W only had the right to claim the benefit he seeks as a result of his later claim if he can rely on the jurisprudence of the European Convention on Human Rights and/or on European Union law.  

9	The question whether Mr W was prevented from making a claim by actions of officials acting for the Secretary of State is not within my jurisdiction. If Mr W is right in his contentions, then this may be a matter where he is alleging maladministration causing injustice to him. Questions of maladministration should be raised directly with the Department for Work and Pensions. And they can be referred by Mr W’s member of parliament to the Parliamentary Ombudsman if that is thought appropriate. But it is not a matter for me.

10	The only arguable questions of law within my jurisdiction are whether Mr W has any rights under either the European Convention on Human Rights or European Union law to make a late claim on the assumptions either that he attempted to make a claim in time but that claim was refused by officials or that he asked about making a claim and officials wrongly advised him not to make that claim. In other words, is there any European rule of law that overrides the three month time limit set in the Claims and Payments Regulations in those circumstances? If there is such a right in European Union law then I must give direct effect to it – as confirmed by the Court of Appeal in Condé Nast. If there is such a right under the European Convention on Human Rights then I must give effect to it if I can by reason of the Human Rights Act 1998.

Has Mr W any rights under European Union law? 
11	Condé Nast concerns the proper implementation in the United Kingdom of directly effective provisions of European Union value added tax law. The details are not relevant in this context. The general issues about national time limits and European legal rights may be relevant. I summarise the substance of lengthy and hard-fought litigation as briefly as I can. A series of decisions by the European Court of Justice decided that the United Kingdom failed to give effect properly to certain rights to repayments of value added tax to taxable persons under European value added tax laws. The taxable persons were both not repaid sums they were entitled to receive bask and prevented later from claiming repayments by strict time limits. This was because the United Kingdom acted retroactively to curtail claims for repayment arising from earlier entitlements. The United Kingdom was found to be in breach of European Union law not only in refusing the repayments but also in imposing disproportionate time limits. The European Court emphasised that any limitations on such claims must be compatible with the principles of effectiveness and the protection of legitimate expectations.  As a result, the United Kingdom introduced transitional measures to deal with late claims where it could be shown that a claim would have been made within the right time.  Those transitional measures were also challenged on the grounds that they were inadequate, and that challenge was also upheld. As a result the United Kingdom further extended the time for late claims. The history and relevant law is set out fully in the judgment of Chadwick LJ in Condé Nast. 

12	The essential point behind this extensive litigation is that time limits cannot be used by a national government to exclude the assertion of rights under directly effective European Union law if those time limits themselves offend European Union law. That could apply to a case such as this if it could be shown that Mr W was prevented from making a claim in time by the United Kingdom government at a time when it was failing to comply with European Union law. 

13	To assert this, Mr W must have directly effective rights under European Union law. If he has no such rights, then he cannot challenge the time limits in the way that they were challenged by taxable persons in the value added tax cases. If he has such rights, as his appeal assumes, then the point must be considered further. That was the issue raised by Mr W’s general grounds of appeal. The reply of the secretary of state's representative is that Mr W has no such European rights. Is that correct?   

14	The key rights to equal treatment in the European Union for men and women in matters of social security are granted in Council Directive 79/7 of 19 12 1978.  The directive personally applies to Mr W under Article 2, but it does not apply to all social security benefits. With regard to the benefits covered, Article 3 provides:

	1. This Directive shall apply to:

	(a) statutory schemes which provide protection against the following risks:
	- sickness
	- invalidity
	- old age
	- accidents as work and occupational diseases
	- unemployment;
 
(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a).

2. This Directive shall not apply to the provisions concerning survivors’ benefits nor to those concerning family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in paragraph 1(a).

The title of the Directive and its second recital both refer to the progressive implementation of equal treatment. No measure has been made to date with regard to survivors’ benefits. That is the category which include the benefits claimed by Mr W. I agree with the secretary of state's representative that Mr W has no basis in European Union law to make his claim for widow’s benefits under this measure.

15	The other general source of rights to social security benefits under European Union law is in Council Regulation (EEC) 1408/71 as amended. This does apply to survivors’ benefits by reason of Article 4. I note from the claim form in 2005 that Mr W’s late wife was 54 when she died so still of working age. However, the essential protection against discrimination in this Regulation is that in Article 3. It is against discrimination on the grounds of nationality and residence. There is no contention here that there is any relevant issue of nationality or residence. Similarly, there are no relevant rights under Council Regulation (EEC) 1612/68 of 15 10 1968 on freedom of movement of workers within the European Union.	Can Mr W nonetheless assert a right because he is a European citizen under Article 17 of the Treaty Establishing the European Union? I can see no basis for any such argument here as there are, for the reasons set out above, no elements of Mr W’s claim that engage European Union law.

16	I conclude that Mr W has no rights under European Union law on which he can base any challenge to the time limits applied to him by the tribunal.

Has Mr W any rights under the European Convention on Human Rights? 
17	Mr W also contended that he could challenge the time limit by reference to the European Convention on Human Rights. And he concluded that if I did not support his appeal he would “join the queue” in Strasbourg. 

18	His point has been dealt with directly by the European Court of Human Rights itself in Application 28006/02 and 12 other applications by Ian Hill and others against the United Kingdom. This is a partial decision as to admissibility issued by the Court on 6 May 2003. The court refused to accept as admissible a series of complaints by Hill and others about the effects of both social security legislation and income tax legislation on their rights as widowers. Some also complained of discrimination on behalf of their late wives. The applications, or some of them, invoked Article 14 of the Convention (discrimination) with Article 8 (family life) and Article 1 of protocol 1 (property rights), and also Article 13 (no effective local remedy). The core allegations were of discrimination on the grounds of sex. The decision of the Court deals comprehensively with the issues that therefore could be raised by Mr W.  

19	The following is the relevant part of the explanation given by the Court’s Fourth Section for these decisions:

“5.  The applicants in applications nos. 28006/02, 28061/02, 3249/03, 3243/03 and 3233/03 all made enquiries with the relevant benefits office around the time of their wives’ deaths, apparently within the relevant time-limit. Where the date of this enquiry (‘the initial claim’) has been specified, it is set out at column 5 of the table. They made subsequent claims for benefit on the date shown in column 6 (the ‘relevant claim’). However, as regards their initial claims, the applicants were in each case advised that there were no benefits for widowers equivalent to those available for widows. In each case no further action was taken by the applicant at that time and the advice given was the final domestic decision within the meaning of Article 35 § 1 of the Convention. In each case this decision was clearly more than six months before the date on which the application was submitted to the Court. It follows that the applications, so far as they relate to these initial claims, have been submitted too late and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention (see Gardner and 3 others v. the United Kingdom (dec.), no. 12937/02, 30 April 2002). 

6.  None of the applicants (save the applicant in 42712/02) can be said to have been directly affected by the discrimination of which they complain during the period between their wives’ deaths, on the dates set out at column 4 of the table attached, and the dates on which they lodged their relevant claims for widows’ benefits, as set out at column 6 of the table. It follows that for the period between their wives’ deaths and the dates on which they lodged their relevant claims for widows’ benefits these applicants cannot claim to have been victims of a violation of their rights under the Convention and First Protocol, and that the applications, insofar as they relate to non-entitlement to widows’ benefits during this period, are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 

7.  The applicants in applications nos. 36229/02, 38347/02, 42412/02, 2368/03 and 3003/03 complain of discrimination on behalf of their late wives in respect of the decision to refuse widows’ benefits. However, the Court does not accept that, in respect of any discrimination which may have been suffered by the applicants’ late wives, that the applicant concerned can claim to be a victim of the alleged violation. It follows that this aspect of the applications concerned is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

8.  The applicants in applications nos. 43390/02 and 3003/03 also invoke Article 13 of the Convention. The Court recalls that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see, for example, Willis v. the United Kingdom, no. 36042/97, § 62, ECHR 2002-IV). It follows that this aspect of the applications concerned is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

9.  The Court considers that it cannot, on the basis of the file, determine the admissibility of the remainder of each application, namely the complaints of discrimination for the period after the applicant made a relevant claim (as set out in column 6 of the table), and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice of them to the respondent Government.

20	These rulings preclude Mr W arguing that he has any rights either on his own behalf or on behalf of his late wife by reference to the European Convention on Human Rights for any period prior to the time when he actually made his claim.  Under the law of the Convention itself this is because neither he nor his late wife can claim to be a “victim” until they have both made a claim and had it rejected. Further, in so far as his enquiry could be regarded as a claim, there must under Convention law be a reference to the European Court within six months of the refusal of the claim. Mr W’s position is exactly the same as several of the applicants before the European Court in the applications cited. It follows that he cannot now use the European Convention on Human Rights to challenge the issue on which the tribunal decided his later claim by arguing that it should have decided it by reference to the time when he could have made a claim. 

Conclusion
21	Mr W therefore has no rights either under European Union law or under the European Convention on Human Rights by reference to which he can now seek to step round the three month time limit under United Kingdom law. His appeal must be dismissed not only by reference to United Kingdom law but also by reference to the European laws over which I have jurisdiction. 

									David Williams
									Commissioner 
									21 05 2007
[Signed on the original on the date stated]