Mrs Hoogendijk suffered from a high degree of disablement. She lost benefits to which she had been entitled as a consequence of amendments which the Dutch government introduced to remove the discriminatory exclusion of married women from the relevant security scheme while at the same time seeking to keep the costs of the scheme within acceptable limits. Mrs Hoogendijk was one of the consequential losers and official figures showed that greatly more women than men were adversely affected by the particular amendment about which she complained.
Held: ‘persons whose situations are significantly different must be treated differently . . An issue will arise under Article 14 . . when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’
‘Although statistics in themselves are not automatically sufficient for disclosing a practice which could be classed as discriminatory under Art.14 of the Convention (see Jordan v United Kingdom: (20030 37 E.H.R.R. 2 at [154], the Court cannot ignore that, according to the results of the research carried out by the Social Insurance Council on the effect of the implementation of the AAW Reparation Act of May 3, 1989 as submitted by the applicant, a group of about 5,100 persons lost their entitlement to AAW benefits on account of failure to meet the income requirement and that this group consisted of about 3,300 women and 1,800 men.
As to the Government’s argument that, without further substantiation, these figures cannot be given the significance attributed to them by the applicant, the Court considers that where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on the grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination. As no such objective factors have appeared or have been submitted by the respondent Government, the Court accepts as sufficiently demonstrated that the introduction of the income requirement in the AAW scheme did in fact have an indirect discriminatory effect in respect of married or divorced women having become incapacitated for work at a time when it was not common in the Netherlands for married women to earn an own income from work.’
Citations:
58641/00, [2005] ECHR 930
Links:
Statutes:
European Convention on Human Rights 14
Jurisdiction:
Human Rights
Cited by:
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 11 September 2022; Ref: scu.277209
