e-mail Paul Lewis on paul@deadline.demon.co.uk
A new campaign for sex equality will shortly be launched in the European Court of Human Rights. And this time it will be on behalf of men. Britain's widowers get one of the worst deals in Europe. There is no equivalent to widow's benefits for men who lose their wives; even those with children get nothing. In almost every other country in the European Union men and women whose spouse dies are treated equally. Only Portugal joins Britain in discriminating against men.
Many of those who suffer are older people like Francis Dean. He was 61 when his young wife Marian died of cancer.
"There was an age gap between me and my wife and we had three young boys when she died. The youngest, Frankie, was only 4. I had to go onto income support and if I earned anything it was taken off my social security. But if I‘d been a woman I‘d have been allowed to work and get my widow's benefit. I just had to tough it out, struggle like. It was hard but they didn‘t starve. I‘d paid my full national insurance contributions, I‘d been in the army, I saw active service in Korea. But I still got nothing."
If Francis had been a widowed woman he would have got, at today's benefit rates, £61.15 widowed mother's allowance plus £32.20 for his three sons in addition to £28.40 child benefit - a total of £121.75. He would have been free to work and earn any amount on top of that without losing it. As a man he would get today just £34.70 child benefit and one parent benefit to keep on top of anything he earned. That potential £87 gap between men and women is one of the most striking examples of discrimination still left in the social security system.
It is not just widowed fathers who lose out. A woman without children who is widowed between the ages of 55 and 60 gets a widow's pension of £61.15 a week. If she is aged 45 to 54 she gets less - down to £18.35 a week at 45. A man gets nothing at any age. And the widow of a man who is not claiming retirement pension when he dies gets a widow's payment of £1000. Again, men get nothing.
It was to right at least part of this injustice that the Campaign for Widowed Father's Allowance was formed by Humphrey Woods. Like many campaigners he became involved when his own life was turned upside down. Six years ago his wife Linda died just hours after giving birth to their daughter Daisy. Linda was in her thirties; it was their first child; and Humphrey, then 42, was suddenly alone with his new daughter. He tried to work part-time but found it was impossible.
"I didn‘t even have the money to bury Linda, I had to borrow it. If the law was equal I would have got £1000. She earned more than me and had always paid her national insurance contributions. It seems so unfair. If I was a woman I would get £71 a week. As it is all I get is £6.30 one parent benefit. I can‘t claim income support because I do have some savings from various endowment policies. The Government should take the bull by the horns and treat fathers and mothers the same. Women are now paying so much into the National Insurance system but they are not buying the same benefits. We're pressing for the Irish system which is to use the contributions paid by whichever partner has the better record."
He has gained the support of many organisations including the Campaign for Equal State Pension Ages (CESPA) which has taken a number of high profile cases to the European Court of Justice. Its most recent success resulted in the Government equalising the age for free prescriptions at 60 for both men and women. Together with the Child Poverty Action Group these organisations are planning to take a test case on widowers to Europe. But this time it will be to the other court, the European Court of Human Rights. The claim is that to discriminate between men and women in the provision of a benefit to the survivor is contrary to the European Convention on Human Rights. This Convention was drawn up in 1950 in the aftermath of World War Two and sets out the basic rights of human beings to life, liberty, enjoyment of property and the proper process of law. Thirty four nations, including Britain, now subscribe to it.
Article 14 of the Convention states that "the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex...".
The Convention itself is supported by Protocols, and Article 1 of the first Protocol, which Britain has also signed, states that "Every...person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except...subject to the conditions provided for by law...[without impairing] the right of a State...to secure the payment of taxes or other contributions..."
The link to widow's benefits is through one of those tortuous arguments which lawyers love. It goes like this. The Protocol allows taxes and contributions to be levied, but those taxes must themselves conform to the terms of Article 14 and so must not discriminate between men and women. National Insurance contributions come under this provision and people who have paid them are entitled to certain benefits. If any of these benefits discriminate between men and women, then they are getting different benefits for the same payments. And that means that their tax also discriminates between them. The only way to avoid that is to ensure that all benefits paid under national insurance contributions, including widow's benefits, do not discriminate between men and women.
This argument has far-reaching effects. Although most sex discrimination in social security benefits is already outlawed under European law (that is quite distinct from the Human Rights Convention - see box), it is still allowed in contributory benefits such as incapacity benefit, widow's benefits, and, most notably, in the different pension ages for men and women. If the European Court of Human Rights accepts the lawyers' argument then all that may have to change.
David Lindsay, legal adviser to CESPA, believes that it will. He says a decision of the Court in September 1996 concerning a Turkish man living in Austria has interpreted the rules in precisely this way.
"In the Gaygusuz case the Court held that not only do contributions have to be non-discriminatory between nationalities, sexes and so on but so do the benefits that are paid under them. So Mr Gaygusuz was entitled to the same rights as an Austrian, That will be our leading case. You have to pick your time to go to court as the law is slowly extended and we think at last it is the right time."
He hopes that the way is now clear to ask the Court to declare Britain's system of widow's benefits as contrary to the European Convention on Human Rights. The case will not be heard for some time. But if the campaigners are eventually successful an estimated 37,000 widowed fathers will benefit as well as an unknown number of widowed men without dependent children. And it could also be used to argue against the continuing discrimination in pension ages between men and women and the many rules linked to those. Under Government plans, that discrimination will not finally end until 6 April 2020 when the pension age for women will have finally been raised to 65.
NOTE
OTHER COUNTRIES
Survivors in other countries In Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Spain, and Sweden men and women have an equal entitlement to a survivor's pension. In Denmark there is no specific survivor's pension but survivors of either sex can qualify equally for an early retirement pension if they need it. In Portugal a widower can only get a survivor's pension if he is over 65 or totally disabled. In the UK there is no provision for a survivor's pension. Outside the European Union, Norway, Poland, Russia, Turkey, and the USA have equal, though not always very generous, benefits for men and women survivors.
NOTE
EUROPEAN COURTS
There are two European courts and they should not be confused.
The European Court of Justice is a body of the European Union - what we used to call the common market. It interprets the Treaty and directives of the European Union. As European law takes precedence over national law, the Court decisions directly affect the law which applies in the United Kingdom and the other 14 member states.
The European Court of Human Rights is quite different. It interprets the European Convention on Human Rights which has been adopted by 34 countries including all those in the European Union. It does not have the force of law but countries which are signatories to it cannot easily avoid implement ing the decisions of the Court. A state which failed to do so would have to leave the Convention or withdraw from certain parts of it.
January 1997
e-mail Paul Lewis on paul@deadline.demon.co.uk