Mr Wilkinson is a widower. His wife died on 23 June 1999. If he had been a widow, he would have been entitled to a special tax allowance called widow's bereavement allowance. This allowance, which is no longer available, was given by section 262 of the Income and Corporation Taxes Act 1988. It provided for a reduction in the tax liability of widows in the year of their husband's death and in the following year. Mr Wilkinson claimed that this rule was discriminatory and that he, as a widower, should receive the same treatment as a widow in similar circumstances.

So far the UK courts have not made provision for him to receive the allowance or be compensated for the fact that he has not received it. The most recent judgement was given in the House of Lords in May 2005. In the notes below, we consider this judgement, an earlier Court of Appeal judgement in June 2003, and give background details about the case.

The House of Lords gave its judgement on 5 May 2005, upholding the ruling of the lower courts. In particular the court considered that the powers of management conferred on HM Revenue and Customs by section 1 of the Taxes Management Act 1970 did not enable them to make an allowance equivalent to the widow's bereavement allowance to Mr Wilkinson by way of Extra Statutory Concession.

The court further considered that it was not inequitable that certain widowers, (Mr Crossland and Mr Fielding) who made a similar application before the Human Rights Act 1998 came into force on 2 October 2000, received compensation from the Government by way of friendly settlement while Mr Wilkinson did not.

Note: The judgement in a parallel case (R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29) was also delivered on 5 May 2005. This case concerned the availability of widows social security benefits to widowers. Again, the court decided that there was no redress for the widowers in UK law.

The Court of Appeal upheld a February 2002 High Court ruling that Adrian John Wilkinson, a widower, was not entitled to a payment equivalent to the widow's bereavement allowance (WBA).

The court of Appeal concurred with the High Court ruling that s262 Income and Corporation Taxes Act 1988 was incompatible with Article 14 of the European Convention on Human Rights, read with Article 1 of the First Protocol.

However, the Court did not consider that HM Revenue and Customs had authority to make an Extra Statutory Concession giving widowers the WBA or an equivalent sum. In the Court’s view, the WBA became an anachronism on the introduction of Independent Taxation of husband and wife in 1994. There was no reasonable justification for its being given to widows after 1994, and therefore to extend the payment to widowers would not necessarily be equitable to the generality of taxpayers. This however would be an issue for the European Court of Human Rights to decide.
A couple of cases have been brought to the European Court of Human Rights, but these were settled out of court. No test case on this issue has yet been successfully taken to the European Court of Human Rights.

Background:

1) S 262 ICTA 1988 provided for an income tax allowance for widows (the WBA) for the year of their husband’s death and for the following year.

2) S34 of the Finance Act 1999 abolished WBA for death after 6 April 2000

3) In 1977, Christopher Crossland brought a case before the European Court of Human Rights alleging discrimination. His wife had died, and in similar circumstances a widow would have been entitled to WBA. His challenge was on the basis of Article 14 of the European Convention on Human Rights, and Article 1 of the First Protocol to the Convention.

Article 14 of the Convention provides that:
‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex ... ’

Article 1 of the First Protocol is, ‘Protection of Property’: This states that:

‘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.’

Together, these formed the basis of the claim.

(Article 14 cannot be relied upon in isolation: it must be shown that one of the rights and freedoms set forth in the Convention has been denied because of discrimination. This is why Article 1 is relevant.)

4) In September 1999, without conceding the claim, the UK Government came to a friendly settlement with Mr Crossland for £575 representing the full amount he would have been paid if WBA had been available to him. He was also paid legal costs of £3,962.48. The case was therefore struck off the court list on 9 November 1999.

5) A similar sequence of events took place in the case of Mr Fielding in 2002.

6) Mr Wilkinson brought an action for a claim to WBA or a payment equivalent to the WBA. In February 2002 the High Court granted a declaration that s262 ICTA 1988 was incompatible with the European Convention on Human Rights.

However, the Court held that the Revenue were not able to make an Extra Statutory Payment equivalent to the WBA. The case was taken to the Court of Appeal – as outlined above.

7) These cases on Widows Bereavement Allowance, are entirely distinct from the claim Mr Willis, also a widower, in Strasbourg on 11 June 2002 for social security payments. Mr Willis’s case was about the right to receive the same social security benefits a widow could claim on the death of her husband. These were a widow’s payment and widowed mother’s allowance. He was successful in his appeal.