MacGREGOR v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 30548/96

by Helen MacGREGOR

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 January 1996

by Helen MacGREGOR against the United Kingdom and registered on

22 March 1996 under file No. 30548/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the respondent Government's letter of 1 August 1997 and the

applicant's reply of 13 August 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a British citizen, born in 1970, lives at Dorset.

She is a veterinary nurse. Before the Commission, she is represented

by Mr. Luke Clements of Thorpes Solicitors, Hereford.

The facts of the case may be summarised as follows.

The applicant, after her marriage in December 1994, reduced her

working hours in order to be able to devote more attention to her son,

who was then four years old, and her husband, a wheelchair user

severely disabled after an accident.

The applicant did so in the anticipation that her loss of income

would be compensated by reduced taxation in the form of an increased

income tax allowance, the additional personal allowance, awarded to tax

paying workers with young children, whose spouses are totally

incapacitated.

The applicant expected to be able to claim this additional

personal allowance by virtue of Section 259 of the Income and

Corporation Taxes Act 1988. By notification dated 13 March 1995 the

applicant was advised that her tax coding included the additional

personal allowance at the current rate of £1,720.00 per annum.

However, this allowance was then rescinded by a notice of the Inland

Revenue dated 23 March 1995.

The applicant appealed against this decision. By letter of

27 September 1995 the Inland Revenue stated that:

"... the Government's ruling is still that the additional

personal allowance is not to be extended to women with

incapacitated husbands. ...

The arrangement whereby a married man with children whose

wife is totally incapacitated is able to claim the

additional personal allowance whereas a wife in similar

circumstances cannot has its roots in a time when Social

Security provision for the disabled was much less

comprehensive than it is now. Up to 1960 married men with

incapacitated wives qualified for the housekeeper allowance

available to widows and widowers. That allowance was

introduced nearly 70 years ago to meet the situation where

a female relative or other person - usually a female -

living in the home of a widow or widower was employed

either to take care of young children or as a resident

housekeeper.

When the additional personal allowance was introduced in

1960 for those with single handed responsibility for

children it was extended - in place of the housekeeper

allowance - to married men with dependent children whose

wives were totally incapacitated. It was considered at the

time that a wife who was wholly incapacitated was not able

to play an active part in looking after the home and

children. ...

It is recognised that the thinking behind the provision may

well be regarded anachronistic, particularly in view of the

introduction of independent taxation of husbands and wives.

Indeed the housekeeper allowance and some other minor

allowances were abolished in 1988 largely because they were

out of tune with modern society. At the time the

Government considered whether this aspect of the additional

personal allowance should be abolished since its main

purpose has in any case been largely superseded by the

development of the Social Security system which is regarded

as a better vehicle than reliefs for delivering cash

assistance to those with special needs."

COMPLAINTS

The applicant complains that as a result of the application of

Section 259 of the Income and Corporation Taxes Act 1988, she has been

a victim of a violation of Article 14 of the Convention, taken together

with Article 1 of Protocol No. 1. She maintains that if she was male,

she would be entitled to be exempted from part of her income tax, but

because she is female she is not. She claims that there is no

justification for this discriminatory treatment based on sex.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 January 1996 and registered

on 22 March 1996.

On 9 April 1997 the Commission decided to communicate the

application to the respondent Government.

The Government, on 1 August 1997, after an extension of the time-

limit fixed for the submission of observations, informed the Commission

that they were content not to contest the admissibility of the

application and did not propose to submit written observations on

admissibility, but would reserve their position on the merits. The

applicant noted the Government's position by her letter of

13 August 1997.

On 28 October 1997 the Commission granted the applicant legal

aid.

THE LAW

The applicant complains that as a result of the application of

Section 259 of the Income and Corporation Taxes Act 1988, she has been

a victim of a discriminatory treatment based on sex which is in breach

of Article 14 of the Convention, taken together with Article 1 of

Protocol No. 1 (Art. 14+P1-1).

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"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.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The respondent Government have made no submission on

admissibility and have reserved their position with regard to the

merits. The applicant has noted the Government's position and has not

submitted any written observations concerning admissibility of the

application.

The Commission considers that the application raises complex

issues of law and fact under the Convention, the determination of which

should depend on an examination of the merits of the application as a

whole. The Commission concludes, therefore, that these complaints are

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring them

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber