Law declared incompatible with human rights - but still Government can deny thousands of people fair settlement

Adrian Wilkinson and Liberty go to the Court of Appeal next Monday (7th October) to appeal against the refusal to grant widowers the widows' bereavement tax allowance.

In February, at judicial review, Mr Justice Moses found that the law's refusal to grant this allowance to men as well as women breached the Human Rights Convention. But he also found that the Inland Revenue, although it still had the power to grant this allowance as a special concession, did not have a duty to, and so had not acted unlawfully in refusing.
Mr Moses also ruled that the Revenue had not acted unfairly by failing to treat Mr Wilkinson in the same way as Mr Christopher Crossland (see below) - with whom the Government settled once he took his case to the European Court of Human Rights in Strasbourg. Liberty argued that the failure to grant Mr Wilkinson this allowance breached the Human Rights Act (see below).

Liberty legal director James Welch is Mr Wilkinson's solicitor; he also represented David Fielding, and others whose European claims the Government has settled.

He summarises:
"The Government is settling cases in the European Court of Human Rights but is failing to honour similar claims in this country. The High Court judgment appears to accept that this is unfair - as it clearly is, to thousands of widowers. We hope that the Court of Appeal will find it is also unlawful".

Moses J also ruled against the case of Hooper, Withey and others, which relates to widows' benefits and which was heard in tandem with Wilkinson. This case also goes to the Court of Appeal on Monday - with the Secretary of State cross-appealing. The Court of Appeal will consider this decision at a hearing listed for four days.

BACKGROUND
Adrian Wilkinson's wife died in June 1999. He wrote to the Inland Revenue late the following year, requesting the widows' tax allowance (a tax relief available to widows in the year of their bereavement and the following year) and was refused on the grounds that he was male. (Mr Wilkinson is 50, a father of two from Essex).

Liberty's case argued that the failure to grant this allowance breaches the Human Rights Act - specifically in relation to article 14 (discrimination) and article 1 of the 1st protocol (peaceful enjoyment of possessions- tax allowance is a possession for tax purposes). We argue that the Inland Revenue has the power to grant this allowance to men as well as women; we therefore sought a judicial review of the Revenue's refusal to refund this money to Mr Wilkinson.

Their refusal is rendered still more extraordinary by the circumstances of a previous European Court of Human Rights case on this point - brought by Liberty for Mr Christopher Crossland. In that case, the Government did not contest admissibility, and elected to settle Mr Crossland's claim. As they paid this allowance to Mr Crossland, it's clearly unfair not to pay it to everyone else in the same position: the Government has a duty to act fairly.
To emphasise the point, in June the European Court ruled in the case of Willis v UK that denying a widower widow's benefits is unfair.

NOTE: The widows' tax allowance was abolished in April 2000, shortly before the Human Rights Act took effect in October 2000. But because tax allowances can be claimed for six years, we say that the Inland Revenue should honour claims made after October 2000.