DISCRIMINATION

Sex - widow's bereavement allowance - 'widow' not including widower

R (Wilkinson) v Inland Revenue Commissioners: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood): 5 May 2005



Section 262 of the Income and Corporation Taxes Act 1988 provided for a bereavement allowance payable only to widows. That allowance was abolished by the Finance Act 1999 in respect of deaths occurring after 6 April 2000. In 1997, when C, a widower, brought a sex discrimination claim in the European Court of Human Rights and it was declared admissible, the government reached a settlement with C and paid him the sum which he would have been paid if he had been entitled to widow's bereavement allowance.


The taxpayer, a widower whose wife died in June 1999, claimed a similar allowance. The commissioners refused his claim on the ground that they had no power to make the payment.


Mr Justice Moses granted a declaration that section 262 was incompatible with article 14, read with article 1 of the first protocol to the European Convention on Human Rights, but otherwise refused the taxpayer's claim for judicial review.


The Court of Appeal dismissed the taxpayer's appeal and held that the commissioners were not authorised by section 1 of the Taxes Management Act 1970 to refrain deliberately from collecting taxes that Parliament had unequivocally decreed, and that section 3 of the Human Rights Act 1998 did not require section 1 of the 1970 Act to be read as permitting the commissioners to make concessions to taxpayers if that was necessary discrimination. The taxpayer appealed.


Dinah Rose (instructed by Liberty) for the taxpayer; Timothy Brennan QC and Ingrid Simler (instructed by the Solicitor, Inland Revenue) for the commissioners.


Held, dismissing the appeal, that the purpose of section 6 of the Interpretation Act 1978 was, by importing the feminine gender to include the masculine unless the contrary intention appeared, to save the parliamentary draftsman from having to say 'he' or 'she' or to find gender-neutral terms; that there were several examples in part VII of the 1988 Act where a gender-neutral term such as 'individual' or 'spouse' was used, or where widowers were specifically included in allowances applying to widows; that Parliament had shown a contrary intention by not using similar terms or extensions in section 262 of the 1988 Act, and that interpretation remained unaffected by section 3 of the 1998 Act, which required legislation to be read compatibly with convention rights; that section 1 of the 1970 Act gave the commissioners a discretion to formulate policy in the interstices of the tax legislation and to deal pragmatically with minor or transitory anomalies, cases of hardship at the margins or cases where a statutory rule was difficult to formulate or its enactment would take up a disproportionate amount of parliamentary time; but that those powers could not be construed so widely as to enable the commissioners, not on the grounds of pragmatism in the collection of tax but of general equity between men and women, to make an extra-statutory concession of an allowance which Parliament did not grant; that, therefore, the commissioners were bound to disallow the taxpayer's claim, and were protected by section 6(2)(a) of the 1998 Act; that just satisfaction required that a claimant for damages was put, so far as possible, in the position in which he would have been if the state had complied with its obligations under the convention; that if the state had complied with its convention obligations, widow's bereavement allowance would have been abolished and would not have been paid to either widows or to widowers; and that, therefore, the taxpayer would not have received the allowance, and no damages were necessary to put him in the position that he would have been in if there had been compliance with his convention rights. (WLR)